foxtail golf course lease by and between
TRANSCRIPT
FOXTAIL GOLF COURSE LEASE
by and between
CITY OF ROHNERT PARK,
a California Municipal corporation
Landlord")
and
ROHNERT PARK GOLF, LLP,
a California limited partnershipTenant")
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CITY-TR 2012- 86
TABLE OF CONTENTS
Page
BASIC INFORMATION 1 - A, 1 - B
ARTICLE 1. BUILDING AND PROPERTY; GOLF REVIEW COMMITTEE 1
1. 1 Condition of Building and Site 1
1. 2 Lease of Site 2
1. 3 Golf Review Committee 2
ARTICLE 2. TERM 3
2. 1 Term 3
2. 2 Commencement Date 3
2. 3 Expiration Date 3
2. 4 Extension of Term 3
ARTICLE 3. RENT 3
3. 1 Base Rent 3
3. 2 Maintenance Credit 4
3. 3 Manner of Payment 4
3.4 Percentage Rent 5
3. 5 Capital Improvement Fund 8
3. 6 Driving Range Capital Improvement Fund Loan 9
ARTICLE 4. TAXES AND ASSESSMENTS 9
4. 1 Personal Property Taxes 9
4.2 Statement Regarding Possessory Interest Taxes 9
4. 3 Taxes 9
4.4 Tenant' s Tax Liability Prorated 9
ARTICLE 5. USE, CHARACTER, OPERATION AND MAINTENANCE
COVENANTS 10
5. 1 General 10
5. 2 Operating Covenant 10
5. 3 General Use Prohibitions 10
5.4 Non - Discrimination 11
5. 5 Rules 11
5. 6 General Standards of Maintenance 11
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TABLE OF CONTENTS
continued)
Page
5. 7 Repairs, Construction of Improvements 12
5. 8 Utilities; Roads 12
5. 9 Pedestrian Warning Signs 12
5. 10 Protection of Landlord 12
5. 11 Liens and Stop Notices 12
ARTICLE 6. PREVAILING WAGES 13
ARTICLE 7. OWNERSHIP OF IMPROVEMENTS AND PERSONAL
PROPERTY 14
7. 1 No Encumbrance 14
7. 2 Ownership upon Termination or Expiration 14
7. 3 Removal and Ownership of Personal Property at Termination orExpiration 14
ARTICLE 8. SERVICES 14
8. 1 Services 14
8. 2 Utility Easements 15
ARTICLE 9. INSURANCE 15
9. 1 Insurance Provided 15
9. 2 Tenant 15
9. 3 General 16
ARTICLE 10. INDEMNITY; LIABILITY EXEMPTION 17
10. 1 Indemnity 17
10. 2 Not A Construction Contract 17
10. 3 Exemption of Landlord from Liability 17
ARTICLE 11, ENVIRONMENTAL MATTERS 18
11. 1 Environmental Compliance 18
11. 2 Tenant' s Indemnification 19
ARTICLE 12. DAMAGE OR DESTRUCTION 20
12. 1 Restoration 20
12. 2 Procedures for Repair and Restoration 20
ARTICLE 13. CONDEMNATION 21
13. 1 Definitions 21
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TABLE OF CONTENTS
continued)
Page
13. 2 Parties' Rights and Obligations to be Governed by Lease 21
13. 3 Total Condemnation 21
13. 4 Effect of Partial Condemnation 21
13. 5 Restoration of Improvements 21
13. 6 Award 22
ARTICLE 14. ASSIGNMENT AND SUBLETTING 22
14. 1 Landlord' s Consent 22
ARTICLE 15, TENANT DEFAULTS AND LANDLORD' S REMEDIES 22
15. 1 Defaults by Tenant 22
15. 2 Remedies 23
15. 3 Damages 24
15. 4 Recapture of Site 24
15. 5 Cumulative 27
ARTICLE 16. MISCELLANEOUS 27
16. 1 Holding Over 27
16. 2 Attorneys' Fees 27
16. 3 Quiet Possession 27
16. 4 Effect of Lease on Original Lease, as Amended 28
16. 5 Security Deposit 28
16. 6 Force Majeure 28
16. 7 Notices 28
16. 8 Waiver 28
16. 9 Surrender 29
16. 10 Binding on Successors and Assigns 29
16. 11 Landlord' s Right to Enter Building and the Site 29
16. 12 Disclaimer of Partnership 30
16. 13 No Recordation 30
16. 14 Quitclaim 30
16. 15 Interpretation 30
16. 16 Severability 30
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TABLE OF CONTENTS
continued)
Page
16. 17 Legal Advice 30
16. 18 Time of Essence 30
16. 19 Nonliability 30
16. 20 Applicable Law 31
16. 21 Covenants and Conditions 31
16. 22 Integration 31
16. 23 Amendments to this Lease 31
16. 24 Compliance With Laws 31
16. 25 Commission 31
16. 26 Relocation Waiver 31
16. 27 Estoppel Certificates 32
16. 28 Counterparts 32
LIST OF EXHIBITS
Exhibit A Property ( Legal Description and Map) Exhibit B Maintenance Credit area improvements
Exhibit C Golf Course Operations SpecificationsExhibit D Golf Course Maintenance Specifications
Exhibit E Golf Course Fees and Prices
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BASIC INFORMATION
The following Basic Information provides a brief synopsis of the critical terms of thisLease and a reference for certain specific terms of this Lease. The Basic Information,
the Recitals below, and all exhibits attached hereto are incorporated into and made a
part of the following Lease. If there is any conflict between the Basic Information andterms of the Lease, the terms of the Lease shall control.
1. Landlord:
2. Tenant:
CITY OF ROHNERT PARK, a California Municipal corporation
130 Avram Avenue
Rohnert Park, CA 94928
Notice: City ManagerEmail: Telephone: (
Facsimile: (
Rohnert Park Golf, LLP,
a California Limited PartnershipP. O. Box 5668
Petaluma, CA 94955 -5568
1670 Corporate Circle, Suite 201
Petaluma, CA 94954
Notice: Tom lsaak
Email: Telephone: (
Facsimile: (
3. Effective Date: July 1, 2012.
4. Site: That certain real property owned by Landlord legallydescribed in and depicted on Exhibit A, commonly knownand referred to as the Foxtail Golf Course in the City ofRohnert Park, County of Sonoma, State of California,
together with the Landlord' s improvements serving the golfcourses located thereon ( excluding any pipes, utilities,
structures or other improvements servicing any propertyother than the golf courses).
Permitted Use: Operation of two 18 hole golf courses and related facilities,
as well as food and beverage service, banquets and
weddings.
6. Term: Twenty ( 20) years, commencing on the Effective Date of theLease and a ten ( 10) year extension option by Tenant as setforth in Article 2.
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1 - A
7. Base Rent: As set forth in Article 3, $ 81, 000 per year, adjusted by aMaintenance Credit of $ 31, 000 per year for a Net Base Rent
of $50, 000 per year or $4, 167 per month commencing on theEffective Date. Both Landlord and Tenant have the right to
terminate the Maintenance Credit and the Base Rent will be
adjusted as set forth in Article 3. Base Rent may beadjusted after each four ( 4) years of the Term by mutualagreement.
8. Percentage Rent: In addition to the Base Rent, Tenant shall pay a percentageof gross receipts on a quarterly basis ( to be reconciled
annually), as defined in Section 3. 5, pursuant to the
schedule as follows:
Gross Receipts Applied to Percentage
Category Amounts Payment
Tier 1
Merchandise Revenue $ 50, 000- 56, 249
Food & Beverage Revenue $ 275, 000 - 312,499
Golf Revenue $ 525, 000 - 562,499
Tier 2
Merchandise Revenue $ 56,250 - 62,499
Food & Beverage Revenue $ 312, 500 - 374, 999
Golf Revenue $ 562, 500 - 662,499
Tier 3
Merchandise Revenue $ 62, 500 and above
Food & Beverage Revenue $ 375,000 and above
Golf Revenue $ 662, 500 and above
LANDLORD' S INITIALS ' TENANT' S INITIAL
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2%
3%
5%
3%
4%
5%
5%
5%
20%
FOXTAIL GOLF COURSE LEASE
This Foxtail Golf Course Lease ( "Lease ") is made and entered into July 1, 2012Effective Date"), by and between the CITY OF ROHNERT PARK, a California
Municipal corporation ( " Landlord" or " City "), and Rohnert Park Golf, LLP, a California
Limited Partnership ( "Tenant ").
I. RECITALS
A. Landlord owns that certain parcel of land located in the City of RohnertPark, County of Sonoma, State of California, as more particularly shown on Exhibit " A" attached hereto and incorporated herein by reference ( the " Foxtail" or "Site ").
B. Landlord desires to facilitate the improvement, operation and maintenance
of Foxtail as a recreational amenity for residents of, and visitors to, Rohnert Park ( theProject'').
C. Whereas, Tenant and City are parties to that certain Ground Lease datedas of May 29, 2001 ( " Original Lease ") and that certain First Amendment to Lease ( "First
Amendment ") dated August 12, 2003 and that certain Second Amendment to LeaseSecond Amendment ") dated March 22, 2005 pursuant to which Tenant operates
public golf courses and related facilities at the Site.
D. The Rohnert Park City Council has determined that it is in the bestinterests of the City, and for the common benefit of the citizens residing in the City, toallow for the Project by entering into a new Lease of Foxtail to the Tenant.
E. Landlord and Tenant wish to enter into this Lease as the most expeditious
means for Landlord to satisfy its desire to improve, operate and maintain Foxtail as arecreational opportunity for the residents and visitors of Rohnert Park.
F. Landlord desires to lease to Tenant, and Tenant desires to lease fromLandlord, Foxtail, all as further set forth herein.
II. AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals and for othergood and valuable consideration, the receipt and adequacy of which are herebyacknowledged, Landlord and Tenant hereby agree as follows.
ARTICLE 1. BUILDING AND PROPERTY; GOLF REVIEW COMMITTEE
1. 1 Condition of Building and Site.
1. 1. 1 AS IS. Foxtail, its grounds, buildings and other improvements, is
being leased to Tenant in its current, existing, AS IS" condition with no warranty
express or implied by Landlord regarding the presence of Hazardous Materials or thecondition of the soil, its geology, the presence of known or unknown seismic faults, or
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the suitability of the Site for the Improvements. Tenant is familiar with the physical,
environmental, and legal condition thereof, and has had the opportunity to inspect andre- inspect the same ( as applicable) before execution of this Lease.
1. 1. 2 Environmental Conditions. Tenant acknowledges that it has been in
possession of the Site and familiar with the Site and that Landlord has provided Tenantwith copies of the reports on the condition of the Site known to the Landlord. Landlord
makes no representations or warranties with respect to the accuracy, completeness,
methodology of preparation or otherwise concerning the contents of any information orreports made available to Tenant regarding any inspections, engineering, environmentalor other matters pertaining to the Site. Tenant acknowledges that Landlord has
requested that Tenant again inspect fully all portions of the Site and investigate allmatters relevant thereto and to rely solely upon the results of Tenant' s own inspectionsor other information obtained or otherwise available to Tenant, rather than any
information that may have been provided by Landlord to Tenant.
1. 1. 3 Release. Tenant hereby fully waives, releases, remises, acquitsand forever discharges Landlord and its officers, officials, agents, attorneys,
representatives, employees, volunteers, independent Tenants, invitees, customers,
licensees, assignees and subtenants, of and from any from all and any manner ofdamages, costs, expenses ( including attorneys' fees and costs), compensation, rights,
demands, liabilities, obligations, claims, fines, penalties, orders actions, or causes of
actions, in law or equity, of whatever kind or nature, whether known or unknown, whether now existing or hereinafter arising ( collectively, "Claims "), which arise from or
relate in any manner to the ( i) Site, ( ii) the physical and environmental conditions,
including the presence of Hazardous Materials ( as defined in Section 12. 1) of the
Building, the Site ( including subsurface conditions), any portion thereof, or any
improvements thereon, except that with regard to the presence of Hazardous Materials,
the Site or any improvements thereon, Tenant shall not be responsible for conditionsthat may have existed prior to May 30, 2001; and ( iii) any Law applicable thereto. Byreleasing and forever discharging claims both known and unknown which are related toor which arise under or in connection with the items set out above, the Tenant expressly
waives any rights under California Civil Code section 1542, which provides:
A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her favor at
the time of executing the release, which if known by him or hermust have materially affected his or her settlement with thedebtor."
1. 2 Lease of Site. Landlord hereby leases and demises to Tenant, and Tenantherby leases and hires from Landlord, the Site, as of the Effective Date, for the Termand upon the covenants and conditions set forth herein. Tenant' s interest in the Site is
referred to herein as the "Leasehold Interest."
1. 3 Golf Review Committee. To facilitate the efficient management and review
of the terms of this Lease and its ongoing requirements during the Term, Landlord and
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Tenant agree to form a " Golf Review Committee." The Golf Review Committee shall
be composed of ( 1) from Tenant: the President and Chief Financial Officer, or
designees, and ( 2) from Landlord: the Finance Director, the Public Works Director, or as
designated by the City Manager. The Golf Review Committee shall meet, at minimum,
every six ( 6) months of the Lease year ( June 30 and December 30) for the purpose ofexamining the preceding quarters, and annual, report of Gross Receipts ( commencingSection 3. 4), any adjustment to the Percentage Rent Schedules ( Section 3.4. 6),
together with a review of the inspections of the golf courses and related facilities for anyneeded or necessary repairs or improvements. Within ten ( 10) working days followingthe meeting of the Golf Review Committee, a report summarizing the findings orrecommendations of the Golf Review Committee shall be forwarded to the City Counciland City Manager of the City.
Within six ( 6) months of formal adoption by Landlord of this Lease agreement, the Landlord shall develop performance measurements and evaluation criteria to trackthe performance of golf course operations ( " Performance Measurements ").
Performance Measurements shall reflect financial growth, customer satisfaction,
improvements, maintenance, and other relevant measures and shall become the basis
by which the Landlord and the Tenant may elect to exercise the ten ( 10) year extensionof the term per Article 2. Prior to finalization of the Performance Measurements,
Landlord shall seek input from the Golf Review Committee.
ARTICLE 2. TERM
2. 1 Term. The "Term" of this Lease shall be twenty (20) years.
2. 2 Commencement Date. The Term shall commence on the Effective Date.
2. 3 Expiration Date, The Term shall expire on that date which is one ( 1) daybefore the twentieth (20) anniversary of the Effective Date ( "Expiration Date ").
2. 4 Extension of Term. Landlord shall extend the Term of this Lease for ten ( 10)
years ( "the Extended Term ") provided that the Tenant is in reasonable compliance, as
determined by the Golf Review Committee, with the Performance Measurements
developed by the Landlord per section 1. 3 and elects to exercise the extension. In noevent shall any extension commence if Tenant is in default under this Lease. Anyreference to Term in this Lease shall include the Extended Term as long as Landlordand Tenant have agreed to an Extended Term.
2. 4. 1 Request for Extension. Tenant shall request the Extended Term bygiving written notice to Landlord no more than 12 months and no fewer than 6 monthsprior to the expiration of the Term.
2.4. 2 Conditions of Extended Term. The Extended Term shall be upon all
of the terms and conditions of this Lease, as may be modified by Landlord and Tenant.
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ARTICLE 3. RENT
3. 1 Base Rent. The term " Rent" means the amounts identified in Basic
Information Section 7 ( " Base Rent "). Tenant' s obligation to pay Rent under this Leaseshall survive the Term to the extent any part of such obligation has not been fulfilledduring the Term. The Base Rent, less the maintenance credit, shall be adjusted at theconclusion of each fiscal year in proportion to changes in the Consumer Price Index (AllUrban Consumers, San Francisco - Oakland -San Jose area; base years 1982 -1984 =
100 published by the U. S. Dept. of Labor). After the second ( 2nd) Lease year, and
every 2 years thereafter, the Golf Review Committee shall review and recommend anadjustment to the Base Rent based on the past financial performance as reflected in theannual reports and audits. Any adjustment in rent, other than CPI changes per above, shall be only by mutual agreement ( Sections 3. 4.4 and 3. 4. 5).
3. 2 Maintenance Credit. Tenant shall be entitled to a credit in lieu of cash
against the Base Rent for the assumption of all maintenance responsibilities for thatapproximately 6. 1 acres of improved landscape area along Golf Course Drive. Maintenance responsibilities shall include, but not be limited to, turf, shrubs, trees, andirrigation system ( including runoff control). Major infrastructure shall remain the
responsibility of the Landlord including irrigation and water main piping. After the fourth
4th) Lease year, and every 4 years thereafter, the Golf Review Committee shall reviewand recommend an adjustment to the Maintenance Credit. Review shall evaluate actual
maintenance costs and the Tenants past financial performance as reflected in theannual reports, but such adjustment shall only occur upon mutual agreement of theLandlord and Tenant. A map depiction of the maintenance area, together with aschedule of maintenance duties and standards, in attached hereto as Exhibit B.
3. 2. 1 Termination of Maintenance Credit. Both Landlord and Tenant shall
have the right to terminate the Maintenance Credit. In the event Landlord elects to
terminate the Maintenance Credit, the Net Rent shall increase by 50% of the amount of
the Maintenance Credit, or, the sum $ 15, 500 per year. In the event Tenant elects to
terminate the Maintenance Credit, the Maintenance Credit shall be eliminated and theTenant shall pay the Base Rent without deduction. At least sixty ( 60) days notice of anelection to terminate shall be provided to the other party.
3. 3 Manner of Payment. All Rent under this Lease shall commence as of theCommencement Date. Tenant shall pay to Landlord, at Landlord' s address designatedin the Basic Information, or at such other address as Landlord may from time to timedesignate in writing to Tenant for the payment of Rent, the Net Rent designated in BasicInformation, without notice, demand, offset or deduction, in advance, on the first day ofeach month of the Term.
3. 3. 1 Late Charge. If Tenant fails to pay any Rent within fifteen ( 15) daysafter the date the same is due and payable, such unpaid amount will be subject to a latepayment charge equal to six percent ( 6 %) of the unpaid amount in each instance;
provided, however, such late payment charge shall not be due in respect of the firstoccurrence in any twelve ( 12) month period during the Term that would otherwise entitle
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the City to impose a late payment charge. The late payment charge has been agreed
upon by City and Tenant, after negotiation, as a reasonable estimate of the additionaladministrative costs and detriment that City will incur as a result of any such failure byTenant, the actual costs thereof being extremely difficult if not impossible to determine. The late payment charge constitutes liquidated damages to compensate City for itsdamages resulting from such failure to pay and Tenant shall promptly pay such chargeto City together with such unpaid interest.
3. 3. 2 Default Interest. If any Rent is not paid within ten ( 10) days
following the due date, such unpaid amount shall bear interest from the due date untilpaid at the legal interest rate. However, interest shall not be payable on late charges
incurred by Tenant nor on any amounts on which late charges are paid by Tenant to theextent this interest would cause the total interest to be in excess of that which an
individual is lawfully permitted to charge. Payment of interest shall not excuse or cure
any default by Tenant.
3. 3. 3 Application of Payments. All payments received by Landlord fromTenant shall be applied to the oldest obligation owed by Tenant to Landlord, No
designation by Tenant, either in a separate writing, on a check or money order, orotherwise shall modify this Article 3 or have any force or effect.
3. 4 Percentage Rent. As provided for in the Basic Information Section 8, in
addition to the Base Rent, Tenant shall pay to Landlord percentage rent based on thefollowing definitions:
3. 4. 1 Gross Receipts. As used herein below, the term " Gross Receipts"
means the entire gross receipts of all merchandise or services sold ( including foodservice, beverage service, facility rental, gift certificates or similar vouchers, vendingmachines and the proceeds of business interruption insurance), leased, licensed or
delivered in or from the Premises and any Improvements by Tenant, or any person orentity substantially controlled by Tenant ( "Affiliate of Tenant "), or any of its or theirsubtenants, licensees, or concessionaires, whether for cash or on credit ( whether
collected or not), including the gross amount received by reason of orders taken on thePremises and any Improvements although filled elsewhere, and whether made by storepersonnel or vending machines. In addition to the forgoing, Gross Receipts shall
include, but not be limited to, the following:
A. " Golf Revenue" shall mean Gross Receipts derived from ( i)
admission fees, entry fees, green fees, driving range fees, tournament fees, advancebooking fees, membership and club dues and other fees and dues of any kind ( includingnonrefundable deposits), and ( ii) rental fees for lockers, golf carts, golf clubs and other
golf equipment and supplies ( without deduction for any rent, interest or other paymentsmade by Tenant, any Affiliate of Tenant, or any of its or their subtenants, licensees orconcessionaires, for any such golf carts, clubs, equipment or supplies which are subjectto equipment leases, installment sales contracts or other financing devices).
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B. " Food and Beverage Revenue" mean Gross Receipts derived from
the sale of all food and beverage items and services including catering, snack shop ormobile snack carts, banquets ( including all rental, food and beverage sales) and rentalof any or all facilities made by Tenant, any Affiliate of Tenant, or any of its or theirsubtenants, licensees or concessionaires, for any such food and beverage items andservices.
C. " Golf Merchandise Revenue" shall mean all the entire Gross
Receipts of the sale of merchandise in the pro shop ( golf clubs, bags, balls, gloves, clothing and accessories, etc.). Any transaction made or fees paid on an installmentbasis, including without limitation any " lay- away" sale, installment or deferred payments, or like transactions, or any transaction otherwise involving the extension of credit, shallbe treated as a sale for the full price at the time of the transaction, irrespective of the
time of payment or when title passes. Credit card transactions shall include only theactual amount received by Tenant from the credit card issuer.
3.4.2 Exclusions from Gross Receipts. Gross Receipts shall not include,
or if included there shall be deducted ( but only to the extent they have been included), the following:
a) the selling price of all merchandise returned by customersand accepted for full credit, or the amount of discounts, refunds, and allowances made
on such merchandise;
b) merchandise returned to sources or transferred to another
store or warehouse owned by or affiliated with Tenant;
c) sums and credits received in the settlement of claims for loss
or of damage to merchandise;
d) the price allowed on all merchandise traded in by customersfor credit or the amount of credit for discounts and allowances made instead ofacceptance of merchandise;
e) any sums paid to third parties excluding, without limitation, any Affiliate of Tenant) for the use or rental of pay telephones, stamp machines, musicmachines, amusement machines, or public toilet locks;
f) any golf merchandise or services sold ( including food serviceor beverage service by way of gift certificates, or similar vouchers;
g) sales and use taxes, so- called luxury taxes, consumers'
excise taxes, gross receipts taxes, and other similar taxes now or in the future imposed
on the sale of merchandise or services;
h) sales of fixtures, trade fixtures or personal property that arenot merchandise as allowed in this Lease; and,
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1) Amounts paid to lesson instructors for providing revenue- producing lessons.
3. 4. 3 Payment. Percentage Rent shall be paid quarterly in arrears basedon Gross Receipts ( defined in Section 3. 4. 1) during each applicable preceding quarter
i. e. March 31, June 30, September 30 and December 31, whether or not consisting of athree -month period). If, after the issuance of the reviewed statement of Gross Receipts
referenced in Section 3. 4.4) Tenant has paid to City Percentage Rent in an amountgreater than the Percentage Rent, as calculated on an annual basis, it is obligated to
pay for any quarter, then the excess amount shall be applied against the next
Percentage Rent due to City. If, after the issuance of the reviewed statement of Gross
Receipts ( referenced in Section 3. 4. 4) Tenant has paid to City an amount of PercentageRent less than Tenant is required to pay on an annual basis, Tenant shall immediatelypay the difference to City, together with interest on such difference at the Default Rate, which interest shall accrue from the due date of the last quarterly payment until suchdifference is paid.
3. 4. 4 Reports. Tenant shall furnish to City a statement of Gross Receiptswithin twenty (20) days after the end of each quarter, and an annual statement of GrossReceipts within forty -five (45) days after the end of each fiscal year ( i. e., June 30). The
statement of Gross Receipts shall include a designation of Golf Revenue, Food andBeverage Revenue and Golf Merchandise Revenue, as well as a designation for allother items deemed to be Gross Receipts pursuant to section 3. 4. 1. Such statement
shall be in a form acceptable to City. Each statement shall be signed and certified to be
correct by Tenant' s general partner or, if Tenant's general partner is a corporation, by aduly authorized officer of Tenant's general partner. In addition, each annual statement
shall be reviewed by an independent certified public accountant reasonably acceptableto City. Tenant shall keep at the Site complete and accurate books of account, records, cash receipts and other pertinent data, in accordance with good accounting practicesand in a form approved by City, showing its Gross Receipts, including without limitation, accurate records of every sale and other transaction made from the Site and anyImprovements, Such books of account, records, cash receipts and other pertinent data
shall be kept for a period of ten ( 10) years after the end of each Lease Year. The
receipt by City of any statement, or any payment of Percentage Rent for any period, shall not bind City as to the correctness of the statement or payment.
3. 4. 5 Inspection and Audit. City shall be entitled, at City's option, at anytime and from time to time during the Term, to inspect, examine, copy and auditTenant's books, records and cash receipts as related to Gross Receipts. The purpose
of such examination is to enable City to ascertain, clearly and accurately, Tenant'sGross Receipts and to verify that the form and method of Tenant's record keepingprovide adequate and proper control and check of all such revenues. Tenant shall
cooperate fully with City and City's Agents in making the examination. City shall also beentitled at City's option, once during each Lease year and once after the Expiration Dateor other termination of this Lease, to cause an independent audit of such records to be
performed by a certified public accountant designated by City. The audit shall be
conducted during usual business hours at the Site. If the audit shows that there is a
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deficiency in the payment of any Percentage Rent, then Tenant shall immediately uponnotice pay the deficiency to City, together with interest thereon at the Default Rate, which interest shall accrue from the date on which such deficient amount would have
been due until such deficiency is paid. City shall pay the costs of the audit unless theaudit shows that Tenant understated Gross Receipts by more than two percent ( 2 %) in
which case Tenant shall pay all City's costs of the audit. Tenant' s understatement of
Gross Receipts for any Lease year by more than five percent ( 5 %) due to Tenant's
gross negligence or willful misconduct shall constitute an default as defined in thisLease.
3. 4. 6 Adjustment of Percentage Rent Schedules. Commencing in Leaseyear three ( 3) and annually thereafter, the Percentage Rent Schedule amounts set forthin Section 8 of the Basic Information may increase by the CPI ( as referenced in Section3. 1) provided that the current year Gross Golf Revenues or the average of Gross Golf
Revenues for the preceding three ( 3) years exceeds the lowest of each of the amountsreflected in Tier 2 of the Basic Information.
3. 5 Capital Improvement Fund. As part of the Original Lease, as amended,
Landlord and Tenant established a Capital Improvement Fund ( "CIF "). The purpose of
the CIF was, and is, to use the funds exclusively for capital additions to the Site orrepair and replacement of capital items, which are needed to be repaired. Pursuant to
the Original Lease, as amended, a Capital Improvement Plan was established byLandlord and Tenant to guide expenditures of the CIF. Amendments to the Capital
Improvement Plan as well as expenditures shall be reviewed and approved by the GolfReview Committee (Section 1. 3).
On or before the twentieth ( 20th) day of each month, Tenant shall deposit intothe CIF, funds in the amounts as follows:
A. Tenant's Share = 2. 5% of the Golf Revenues ( Section 3. 4. 1 A) from
the preceding month.
B. Landlord' s Share = 1. 0% of the Golf Revenues ( Section 3. 4. 1 A)
from the preceding month for years one ( 1) and two ( 2). Year three ( 3) and thereafter,
Landlords Share = 2. 0% of the Golf Revenues.
During the first three ( 3) Lease years, Tenant shall only deposit the LandlordsShare. Commencing on the fourth Lease year, Tenant shall thereafter deposit both thecombined Tenant's and Landlord' s Share.
CIF funds are to be held in trust for the benefit of the Landlord' s interest in theSite, including its reversionary interest in the Site upon termination of this Lease. Interest earned on funds held in such account shall become part of the CIF, excludingoverpayments made by Tenant, and all amounts remaining in the CIF upon terminationof this Lease shall be remitted to Landlord. Any past, existing or future overpayment inthe amount of contribution made by Tenant to the Capital Improvement Fund shall beavailable to Tenant to withdraw at tenant's discretion.
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3. 6 Driving Range Capital Improvement Fund Loan. The $ 355, 000 loan made
by the City to the Capital Improvement Fund for the driving range was made in late2003 and was scheduled to be paid off in ten years at 5% interest by the Fund. The
Fund has made all scheduled payments to date and the current outstanding balance asof June 30, 2012 is $ 75, 560.65. Landlord agrees to allow tenant to amortize the
remaining balance as of June 30, 2012 at the existing interest rate until June 30, 2017.
ARTICLE 4. TAXES AND ASSESSMENTS
4. 1 Personal Property Taxes. Tenant shall pay before delinquency all taxes, assessments, license fees and other charges levied and assessed against Tenant or
Landlord with respect to any Personal Property ( defined in Section 7. 3) ( " Personal
Property Taxes ") which may become payable during the Term or are attributable toTenant' s use or occupancy of the Site. On demand by Landlord, Tenant shall furnishLandlord with satisfactory evidence of these payments. Notwithstanding the foregoing, Tenant shall have the right to contest the imposition or collection of any such PersonalProperty Taxes, which Tenant reasonably believes, was improperly assessed orcalculated.
4.2 Statement Regarding Possessory Interest Taxes. This Lease creates a
possessory property interest in Tenant. Tenant acknowledges and agrees that Tenant'sleasehold and /or other property interests may be subject to property taxation, and
Tenant to the payment of property taxes levied on the interest. Such taxes are referred
to herein as " Possessory Interest Taxes," and shall be paid by Landlord during theterm of this Lease.
4. 3 Taxes. Excepting any Possessory Interest Taxes as set forth in section 4. 2, Tenant shall pay all before delinquency taxes, impositions, general or special
assessment, surcharge, fee, levy, penalty, bond, or similar charge is levied on anybusiness conducted on the Site or any portion thereof) general and special taxesincluding gross receipts tax, excise tax levied by any Taxing Authority ( defined below) including with respect to Landlord' s receipt of Rent or ownership, management or
operation of the Site ( collectively, " Taxes "), now or in the future levied and assessed
against the Site, or any improvements, any portion thereof, or any improvementsthereon by any authority having the power to tax, including any federal, state or countygovernment or any political subdivision thereof ( "Taxing Authority "). In the event anyPersonal Property Taxes, and other Taxes, as described in this Article 4 or any othercosts to be borne by or due from Tenant are not assessed or charged against the Siteseparately from other Landlord -owned property, Landlord shall reasonably allocate suchon a pro -rata basis.
4. 4 Tenant's Tax Liability Prorated. Tenant's liability to pay any Taxes and newassessments shall be prorated on the basis of a 365 -day year to account for anyfractional portion of a fiscal tax year included in the Term at its inception and expiration
or other termination in accordance with this Lease.
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ARTICLE 5. USE, CHARACTER, OPERATION AND MAINTENANCE COVENANTS
5. 1 General. Tenant covenants and agrees on behalf of itself and its successorsand assigns that Tenant shall use and continuously operate the Site in conformancewith the Use as listed in the Basic Information ( " Permitted Uses "). Tenant shall not
commit waste in the Site, any portion thereof, or any improvements thereon. Tenant's
failure to continuously operate Foxtail, pursuant to the Permitted Use, or failure to
comply with other provisions of this Article 5, shall constitute a material default underthis Lease.
5. 1. 1 Tenant' s Responsibilities. Tenant, at its expense, will be
responsible for managing, operating, maintaining, marketing and conducting golfrelated programs at Foxtail in a prudent and business -like manner and in accordancewith the Permitted Uses. Tenant's responsibilities and authority are also specified inExhibit C and Exhibit D.
5. 2 Operating Covenant. Tenant acknowledges that continuous operation of
Foxtail is necessary for the use of the Site as an ideal location for golf recreational usesand that Tenant' s failure to open or remain open will be detrimental to both the imageand the economics of the Site, and this Lease.
5. 2. 1 Tenant shall keep Foxtail open to the public seven ( 7) days per
week, except as specified in Exhibit C.
5. 2. 2 For each day of operation, Foxtail must be open to the public duringthe daylight hours each day.
5. 2. 3 Initial Golf Course Fees and Prices are as set forth in Exhibit E.
5. 3 General Use Prohibitions. Tenant covenants and agrees that in connection
with the use and operation of the Site, and any portion thereof, Tenant will not:
5. 3. 1 Use or permit the use of any reasonably objectionable advertising
medium including any loudspeakers, phonographs, public address systems, sound
amplifiers, radio or broadcast within the Site in such manner that any soundsreproduced, transmitted or produced shall be directed primarily beyond the Siteprovided, however, that nothing herein shall be deemed to prohibit the installation and
use of a public address system for golf events or security purposes; or
5. 3. 2 Permit undue accumulations of garbage, trash, rubbish or any otherrefuse; or
5. 3. 3 Create, cause, maintain or permit any nuisance ( as the same maybe defined by applicable Law) in, on or about the Site; or
5. 3. 4 Commit or suffer to be committed any waste in, on or about the Site; or
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5. 3. 5 Use or allow the Site to be used for any unlawful purpose; or
5. 3. 6 Do or permit to be done anything which in any way unreasonablydisturbs the occupants of neighboring property; or
5. 3. 7 Cause or permit any insurance coverage on the improvements orSite to become void or voidable or make it impossible to obtain any required insuranceat commercially reasonable rates; or
5. 3. 8 Intentionally cause or knowingly permit any material structuraldamage to or deterioration of the Site, or improvements or any portion thereof, or to anyadjacent public or private property or improvements; or
5. 3. 9 Violate any law, ordinance or regulation ( including the Rohnert ParkMunicipal Code) applicable to the Site; or,
5. 3. 10 Any activities not appropriate to a first class golf course; or,
5. 3. 11 Activities prohibited by any permits and approvals issued by theCity of Rohnert Park; or,
5. 3. 12 Activities that are or would be in violation of any applicable userestrictions imposed upon Landlord by any other agreement to which Landlord is aparty.
5. 4 Non - Discrimination. Tenant covenants and agrees that there shall be no
discrimination against or segregation of any person or group of persons on account ofrace, color, creed, religion, sex, marital status, sexual orientation, source of income, age, physical or mental handicap, medical condition, national origin or ancestry in theuse, occupancy or enjoyment of the Site or any portion thereof.
5. 5 Rules. Landlord reserves the right at any time to impose reasonable rulesand regulations as, in Landlord' s judgment, may from time to time be necessary for theoperation, management, safety, care and cleanliness of the Site, any portion thereof, orany improvements thereon, for the preservation of good order therein, or for the
convenience of other occupants and tenants of the Site, if any. Tenant shall abide by
any additional rules or regulations, which are ordered or requested by any governmentalor military authority. Tenant shall cooperate with Landlord to affect the intent of thisSection 5. 5. Landlord shall not be responsible to Tenant or to any other person for thenon - observance, non - compliance, or violation of the foregoing by Tenant by any othertenant, occupant, or other persons, or Landlord' s failure to enforce, any of the foregoing, or any other terms or provisions of any other tenant' s or occupant' s lease.
5. 6 General Standards of Maintenance. Tenant covenants and agrees that it
shall maintain, or cause to be maintained, the Site, all portions thereof and all
improvements thereon in accordance with the standards contained in Exhibit D.
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5. 7 Repairs, Construction of improvements. Tenant shall be responsible to
perform all maintenance, repairs, construct, or reconstruct capital improvements. Anyrepair or capital improvement over $ 15, 000 will require the prior consent of the City,
which consent will not be unreasonably withheld.
5. 8 Utilities: Roads. City shall be responsible for maintaining and repairingaccess roads and sewer and water facilities providing sewer and water service to theSite, except for access roads that are located on the Site and sewer and water facilitiesthat are solely or primarily for the benefit of the golf course operations.
5. 9 Pedestrian Warning Signs. Tenant shall install appropriate signs at all
pedestrian entrances to the golf course warning all persons entering onto, and walkingon, the golf course, course paths, etc. to be aware for their care and safety during thetimes of golf play and that severe injury may result from a lack of attention to theirpersonal safety. The location and wording of such signs shall be determined by theGolf Review Committee.
5. 10 Protection of Landlord. Nothing in this Lease shall be construed asconstituting the consent of Landlord, expressed or implied, to the performance of anylabor or the furnishing of any materials in connection with any construction by anyTenant, subtenant, laborer or materialman, nor as giving Tenant or any other personany right, power or authority to act as agent of, or to contract for or permit the renderingof any services, or the furnishing of any materials, in such manner as would give rise tothe filing of mechanics' liens or other claims against the Site, the Building, the
Improvements, any portion thereof, or any improvements thereon. Landlord shall have
the right at all reasonable times to post, and keep posted, on the Site, the
Improvements, any portion thereof, or any improvements thereon, any notices whichLandlord may reasonably deem necessary for the protection of Landlord and of suchproperty and improvements from mechanics' liens or other claims. Tenant shall give
Landlord 10 days' prior written notice of the commencement of any construction to bedone to enable Landlord to post such notices. In addition, Landlord may in itsreasonable discretion require Tenant to furnish to Landlord at Tenant's expensereasonable improvement security, including completion and labor and materials bonds, prior to commencement of any such construction. Tenant shall make, or cause to be
made, prompt payment of all monies due and legally owing to all persons doing anyconstruction or furnishing any materials or supplies to Tenant or any of its Tenants orsubtenants in connection therewith.
5. 11 Liens and Stop Notices. Tenant shall keep the Site, the Improvements, anyportion thereof, and any improvements thereon, free and clear of all stop notices, mechanics' liens, and other liens on account of any construction performed by or onbehalf of Tenant or persons claiming under Tenant. Tenant agrees to and shall
indemnify and save Landlord harmless against any and all liability, loss, damages, costs, attorneys' fees, and all other expenses on account of claims of lien of laborers ormaterialmen or others for construction performed by or on behalf of Tenant or materialsor supplies furnished to Tenant or persons claiming under Tenant. If a claim of a lien or
stop notice is given or recorded affecting the Site, the Improvements, any portion
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thereof, or any improvements thereon, Tenant shall within thirty ( 30) days of such
recording or service: ( a) pay and discharge the same; ( b) effect the release thereof by
recording and delivering to Landlord a surety bond described in California Civil CodeSection 3143, or successor statute in sufficient form and amount which results in the
removal of such lien from the Building, the Site, the Improvements, all portions thereof, and all improvements thereon; or ( c) otherwise obtain or effect the release thereof.
Should any claims of lien be filed against the Building, the Site, the Improvements, anyportion thereof, or any improvements thereon, or any action be commenced affectingthe title to such property, the party receiving notice of such lien or action shall forthwithgive the other party written notice thereof.
ARTICLE 6. PREVAILING WAGES.
Tenant acknowledges and agrees that any construction or alterations made by oron behalf of Tenant to the Site, Improvements, any portion thereof, or any
improvements thereon ( " Improvement Work "), whether paid for in whole or pad byLandlord or which are considered to have been paid for in whole or part by Landlorde. g. which become Landlord' s property upon the expiration or other termination of this
Lease), will constitute " construction, alteration, demolition, installation, or repair work
done under contract and paid for in whole or in part out of public funds...." California
Labor Code Section 1720. Accordingly, except as to Tenant's employees, Tenant shallcomply with applicable prevailing wage policies as set forth in the City of ROHNERTPARK Municipal Code, applicable California Labor Code requirements pertaining topublic works" (California Labor Code Section 1720 et seq., as amended from time to
time and implementing regulations), the Davis -Bacon Act ( sec. 1 - 7, 46 Stat. 1949, as
amended; Pub. L. 74 -403, 40 U. S. C. 276a- 276a -7, as amended from time to time and
implementing regulations), and other applicable Laws addressing the payment ofprevailing wages in connection with any Improvement Work ( collectively, " PrevailingWage Laws "). Tenant shall require the general contractor for any Improvement Work tosubmit, upon request by Landlord, certified copies of payroll records to Landlord and tomaintain and make records available to Landlord and its designees for inspection and
copying to ensure compliance with Prevailing Wage Laws. Tenant shall also include in
its general Tenant agreement, and in all of its subleases and other contracts, a
provision in a form acceptable to Landlord which obligates the general Tenant andothers as applicable, ( a) to comply with, and to require that their respective subtenants, Tenants and /or subtenants comply with, Prevailing Wage Laws, and ( b) upon requestby Landlord to submit certified copies of payroll records to Landlord and to maintain andmake such payroll records available to Landlord and its designees for inspection and
copying during regular business hours at the Site or at another location within the City ofRohnert Park. Tenant shall defend, indemnify and hold harmless Landlord and itsofficers, officials, employees, volunteers, agents and representatives ( collectively,
Indemnitees ") from and against any and all Claims arising out of or in any wayconnected with Tenant's obligation to comply with all Laws with respect to anyImprovement Work and /or Prevailing Wage Laws, including all Claims that may bemade by Tenants, subtenants or other third party claimants pursuant to Labor CodeSection 1726. Tenant hereby waives, releases and discharges forever the Indemniteesfrom any and all present and future Claims arising out of or in any way connected with
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Tenant' s obligation to comply with all Laws with respect to the Improvement Work andPrevailing Wage Laws.
ARTICLE 7. OWNERSHIP OF IMPROVEMENTS AND PERSONAL PROPERTY
7. 1 No Encumbrance. Tenant further agrees not to encumber, promise to
encumber, or otherwise enter into a contract to encumber, the Site or the Improvements
in any manner that would impair Landlord' s rights, in, to, or ownership thereof ascontemplated under Section 72.
7. 2 Ownership upon Termination or Expiration. Upon the expiration or other
termination of this Lease for any reason, or upon foreclosure of Tenant's LeaseholdInterest ( including transfer of Tenant' s Leasehold Interest via any instrument ofassignment or transfer in lieu of the foreclosure), the Improvements, and all other
improvements on the Site, shall, without compensation to Tenant, become Landlord' s
property ( broom dean and in good condition and repair, reasonable wear and tear
excepted) free and clear of all claims to or against them by Tenant or any third person.
7. 3 Removal and Ownership of Personal Property at Termination or Expiration. Personal Property" means personal property owned or used by Tenant or any of
Tenant's Parties on or about the Site, any portion thereof, or any improvements thereon, together with any Trade Fixtures. " Tenant' s Parties" means, individually andcollectively, Tenant's officers, officials, agents, representatives, employees, volunteers, independent Tenants, invitees, customers, licensees, assignees, and subtenants.
7. 3. 1 During Term. Any Personal Property that may be removed withoutdamage to the structural integrity of the Site or the Improvements may be removed byTenant from time to time during the Term. Tenant shall repair all damage caused byany such removal.
ARTICLE 8. SERVICES
8. 1 Services. After the Effective date Tenant, at Tenant' s sole cost and
expense, shall be responsible and directly contract and pay for any and all utilities andservices required or desired by Tenant in connection with its use or occupancy of theSite, or any portion thereof, or any other improvements, including telephone, computersand cable lines, wiring, materials, security, heat, air conditioning, gas, water sewer, electricity, refuse, sewage, garbage, pest control services, and any other utilities,
materials, or services supplied to or serving the Site, or any portion thereof, or any otherimprovements now or in the future located thereon ( including any construction), together
with any repair, installation, maintenance thereof, and infrastructure therefor to the
extent located on the Site ( "Services ") . Tenant shall hold Landlord harmless from and
against any and all demands, liability, claims, actions and damages to any person orproperty, costs and expenses, including reasonable attorneys' fees, arising out of orconnected with the provision and payment of the Services supplied to or serving theSite, any portion thereof, or any improvements thereon. Tenant, at its expense, shall
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comply with federal, state, or local governmental controls, rules, regulations, or
restrictions on the use or consumption of Services during the Term.
8, 2 Utility Easements. Tenant shall permit any authorized public agency or
public utility company, with the approval of Landlord, and /or shall grant to Landlord sucheasements over Tenant's interest in the Site, any portion thereof, or any improvementsthereon, as applicable, as are required for the installation, existence, maintenance, andoperation of Services.
ARTICLE 9. INSURANCE
9. 1 Insurance Provided. Following the Effective Date, Tenant shall provide thefollowing forms and amounts of insurance. Such insurance shall be primary to and notcontributing with any other insurance, self- insurance or joint self- insurance maintainedby Landlord and shall name the Landlord as an additional insured.
9. 2 Tenant. Tenant shall, at Tenant's expense, obtain and keep in force at alltimes during the Term the following " Tenant' s Insurance," and shall be liable for all
premiums, deductibles, and self - insured amounts, if any, in connection therewith.
Tenant' s Insurance shall not have a deductible amount exceeding Five ThousandDollars ($ 5, 000).
9. 2. 1 Commercial General Liability Insurance. A policy of commercialgeneral liability insurance ( occurrence form) having a combined single limit of not lessthan Five Million Dollars ($ 5, 000, 000) per occurrence and Five Million Dollars
5, 000,000) annual aggregate, providing coverage for, among other things, blanketcontractual liability ( including Tenant's indemnification obligations under this Lease), premises liability, products and completed operations liability, owner's protective
coverage, broad form property damage, and bodily injury ( including wrongful death) andadvertising injury coverage. If necessary, Tenant shall provide for restoration of theaggregate limit.
9. 2. 2 Workers' Compensation and Employer's Liability Insurance.
Workers' compensation insurance, if required by Law, which complies with all applicablestate statutes and regulatory requirements, and employer's liability insurance coveragein statutory amounts.
9. 2. 3 Site Insurance. " All risk" property insurance including fire andextended coverage, sprinkler leakage, vandalism and malicious mischief coverage,
covering damage to or loss to the Site, any portion thereof, or any improvementsthereon ( together with, if the property of Tenant's Parties is to be kept in the or aboutthe foregoing, warehouser' s legal liability or bailee customers insurance propertybelonging to Tenant's Parties and located in or about the foregoing), in an amount not
less than the full replacement cost thereof. In the event that there shall be a dispute as
to the amount, which comprises full replacement cost, the decision of Landlord or themortgagees of Landlord shall be presumptive.
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9. 2. 4 Other Insurance. Any other form or forms of insurance as Landlordor the mortgagees of Landlord may reasonably require from time to time, in form,
amounts and for insurance risks against which a prudent tenant would protect itself, butonly to the extent such risks and amounts are available in the insurance market atcommercially reasonable costs.
9. 3 General.
9. 3. 1 Insurance Companies. Tenant's Insurance shall be written bycompanies licensed to do business in California and having a " General PolicyholdersRating" of at least A VII ( or such higher rating as may be required by a lender having alien on the Leasehold Interest) as set forth in the most current issue of "Best' s InsuranceGuide."
9. 3. 2 Certificates of Insurance. Tenant shall deliver to Landlord
certificates of insurance for Tenant' s Insurance, in the form of the ACORD standardcertificate of insurance, prior to the Commencement Date. Tenant shall, at least thirty30) days prior to expiration of the policy, furnish Landlord with certificates of renewal orbinders" thereof. Each certificate shall expressly provide that such policies shall not be
cancelable or otherwise subject to modification except after thirty ( 30) days' prior writtennotice to the parties named as additional insureds as required in this Lease. If Tenant
fails to maintain any insurance required in this Lease, Tenant shall be liable for alllosses and costs resulting from said failure.
9. 3. 3 Additional Insureds. Landlord, its elected officials, officers,
employees, volunteers, lenders, agents, representatives, Tenants and each of their
successors and assigns shall be named as additional insureds on the commercial
general liability policy required by this Lease. An additional insured endorsement
naming such parties as additional insured( s) shall be attached to the certificate of
insurance.
9. 3. 4 Primary Coverage. Tenant' s Insurance shall be primary, without
right of contribution from any Landlord' s Insurance.
9. 3. 5 Umbrella /Excess Insurance. Any umbrella liability policy or excessliability policy shall provide that if the underlying aggregate is exhausted, the excesscoverage will drop down as primary insurance. The limits of Tenant' s Insurance shall
not limit Tenant' s liability under this Lease.
9. 3. 6 Waiver of Subrogation. Tenant waives any right to recover againstLandlord for claims for damages to Tenant' s Personal Property to the extent covered ( orrequired by this Lease to be covered) by Tenant' s Insurance. This provision is intendedto waive fully, and for the benefit of Landlord, any rights and /or claims which might giverise to a right of subrogation in favor of any insurance carrier. The coverage obtained
by Tenant pursuant to this Lease shall include a waiver of subrogation endorsementattached to the certificate of insurance.
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9. 3. 7 Notification of Incidents. Tenant shall notify Landlord within twenty - four ( 24) hours after the occurrence of any accident or incident on or about the Building, the Improvements, the Site, any portion thereof, or any improvements thereon whichcould give rise to a claim against Landlord, Landlord' s Insurance, Tenant, or Tenant'sInsurance, except that Tenant shall not be obligated to give Landlord notice of anyaccident or incident which could give rise to a claim under Tenant' s workers' compensation insurance. Tenant' s notice shall be accompanied by a copy of any
report( s) relating to the accident or incident.
ARTICLE 10. INDEMNITY; LIABILITY EXEMPTION
10. 1 Indemnity. Except to the extent claims are caused by Landlord' s solenegligence or willful misconduct, Tenant shall indemnify, protect, defend, and hold
harmless Landlord and its elected officials, officers, employees, volunteers, lenders, agents, representatives, Tenants and each of their successors and assigns from andagainst any and all claims, judgments, causes of action, damages, penalties, costs,
liabilities, and expenses, including all costs, attorneys' fees, expenses and liabilitiesincurred in the defense of any such claim or any action or proceeding brought thereon, arising at any time during or after the Term as a result ( directly or indirectly) of or inconnection with ( a) any Tenant default under this Lease ( including in the performance ornon - performance of any obligation on Tenant' s part to be performed under the terms ofthis Lease); ( b) Tenant's performance of the work of Improvements ( including design, development, and construction) ( c) Tenant' s or Tenant's Parties use of the Site, anyportion thereof, or any improvements thereon, the conduct of Tenant's business or anyactivity, work or thing done, permitted or suffered by Tenant or Tenant' s Parties in orabout the Site or any portion thereof, or any improvements thereon, except that withregard to the presence of Hazardous Materials, the Site or any improvements thereon, Tenant shall not be responsible for conditions that may have existed prior to May 30, 2001,; ( d) any act, error or omission of Tenant or Tenant' s Parties in or about theBuilding, the Site, Improvements, any portion thereof, or any improvements thereon; ( e)
loss of, injury or damage to, or description of property ( including merchandise or
inventory), including loss of use resulting from such loss, injury, damage, or destruction; or ( f) any resulting economic Toss, consequential damages, or exemplary damages
collectively, " Indemnification "). Tenant shall provide such Indemnification by and
through counsel reasonably acceptable to Landlord. The obligations of Tenant under
this Section 10. 1 shall survive the expiration or other termination of this Lease withrespect to any claims or liability arising prior to such expiration or other termination.
10. 2 Not A Construction Contract. This Lease is not intended nor shall it be
construed to be a construction contract. To the extent this Lease is construed by a
court of law to be a construction contract, all indemnity obligations construed to berelated to construction contracts shall be read as if including the carve out "except to theextent claims are caused by the sole or active negligence or willful misconduct of theindemnified party."
10. 3 Exemption of Landlord from Liability. Tenant, as a material part of the
consideration to Landlord, hereby assumes all risk of damage to property ( including the
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Personal Property, the Improvements, the Site, any portion thereof and any
improvements thereon), and injury to or death of persons in, upon or about PersonalProperty, the Improvements, the Site, any portion thereof, or any improvements
thereon, arising from any cause, and Tenant hereby waives all claims in respect thereofagainst Landlord, except to the extent such claims are caused by Landlord' s solenegligence or willful misconduct. Tenant hereby agrees that Landlord shall not be liablefor injury to Tenant' s business or any loss of income therefrom or for damage to thePersonal Property , or injury to or death of Tenant, Tenant' s Parties or any other personin or about the Improvements, the Site, any portion thereof, or any improvementsthereon, whether such damage or injury is caused by fire, steam, electricity, gas, wateror rain, or from the breakage, leakage or other defects of sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures, or from any other cause, whether saiddamage or injury results from conditions arising within or about the Personal Property, the Building, Improvements, the Site, any portion thereof, or any improvements thereonor from other sources or places, and regardless of whether the cause of such damageor injury or the means of repairing the same is inaccessible to Tenant, except damageor injury caused solely by Landlord' s sole negligence or willful misconduct. Landlord
shall not be liable for any damages arising from any act or neglect of any other tenant oroccupant, if any, of the Personal Property, the Improvements, the Site, any portionthereof, or any improvements thereon, or Landlord' s failure to enforce the terms of anyagreements with parties other than Tenant.
ARTICLE 11. ENVIRONMENTAL MATTERS
11. 1 Environmental Compliance. Neither Tenant nor any of Tenant' s Partiesshall use, handle, store, transport, treat, generate, release or dispose of any HazardousMaterials anywhere in, on, under or about the Personal Property, the Site,
Improvements, any portion thereof, or any improvements thereon. Notwithstanding the
foregoing, Tenant may use, handle, store, transport, treat, generate, release or disposeof any Hazardous Materials in such limited amounts as are customarily used for generaloffice purposes ( such as copy toner and supplies) or for maintenance, equipment andsupplies for power golf carts, so long as Tenant is at all times in full compliance with allapplicable environmental laws and further provided that Tenant may use and storequantities of pesticides and herbicides customarily used in connection with themaintenance and operation of golf courses. Tenant shall cause any and all HazardousMaterials ( defined below) brought onto, used, generated, handled, treated, stored,
released or discharged on or under the Personal Property, the Site, the Building, Improvements, any portion thereof, or any improvements thereon to be removedtherefrom and transported for disposal in accordance with applicable Laws, includingHazardous Materials Laws ( defined below). Landlord shall have the right to enter the
Personal Property, the Site, Improvements, any portion thereof, or any improvementsthereon from time to time to conduct tests, inspections and surveys concerning
Hazardous Materials and to monitor Tenant' s compliance with its obligations concerningHazardous Materials and Hazard Materials Laws. Tenant shall immediately notify
Landlord in writing of: ( a) any release or discharge of any Hazardous Material; ( b) any
voluntary clean -up or removal action instituted or proposed by Tenant, ( c) any
enforcement, clean -up, removal or other governmental or regulatory action instituted orIRV #4817- 4429 -6207 v10
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threatened, or ( d) any claim made or threatened by any person against Landlord, Tenant, the Personal Property, the Site, Improvements, the Building, any portion
thereof, or any improvements thereon relating to Hazardous Materials or HazardousMaterials Laws. Tenant shall also supply to Landlord as promptly as possible, and inany event within five ( 5) business days after Tenant receives or sends same, copies ofall claims, reports, complaints, notices, warnings or asserted violations relating in anyway to the Personal Property, the Site, Improvements, the Building, any portion thereof, or any improvements thereon or Tenant' s use thereof and concerning HazardousMaterials or Hazardous Materials Laws. In the event Tenant institutes a cleanup or
removal action, Tenant shall provide copies of all work plans and subsequent reportssubmitted to the governmental agency with jurisdiction to Landlord in a timely manner. Hazardous Materials Laws" means all laws, codes, rules, orders, ordinances,
directives, regulations, permits, or other requirements of federal, state, county,
municipal or governmental authorities having jurisdiction, now in force or which mayhereafter be in force concerning the management, use, generation, storage,
transportation, presence, discharge or disposal of Hazardous Materials. " Hazardous
Materials" means any and all pollutants, wastes, flammabies, explosives, radioactivematerials, hazardous or toxic materials, hazardous or toxic wastes, hazardous or toxicsubstances, carcinogenic materials or contaminants and all other materials governed,
monitored, or regulated by any Federal, State or local Law or regulation, including theComprehensive Environmental Response, Compensation and Liability Act, the
Hazardous Substances Account Act, and /or the Resources Conservation and RecoveryAct, together with asbestos, asbestos - containing materials, hydrocarbons,
polychlorinated biphenyl ( " PCB ") or PCB - containing materials, petroleum, gasoline,
petroleum products, crude oil or any fraction, product or by product thereof.
11. 2 Tenant's Indemnification. Except to the extent caused by Landlord' s solenegligence or willful misconduct or except with regard to the presence of HazardousMaterials on the Site prior to May 30, 2001„ Tenant shall indemnify, defend and holdLandlord harmless from any claims, causes of action, liabilities, losses, damages,
injunctions, suits, fines, penalties, costs or expenses ( including attorneys' fees andexpenses and consultant fees and expenses) caused or alleged to have been causedby the presence of Hazardous Materials in, on, under, about, or emanating from thePersonal Property, the Building, Improvements, the Site, any portion thereof, or anyimprovements thereon, including any bodily injury, death, property damage, natural
resource damage, decrease in value of the Site, the Building, Improvements, any
portion thereof, or any improvements thereon, caused or alleged to have been causedby Tenant or Tenant' s Parties' use, storage, handling, treatment, generation, presence, discharge or release of Hazardous Materials in violation of Tenant' s obligations underthis Lease, whether such claims, causes of action or liabilities are first asserted duringthe Term or thereafter, and including claims made against Landlord with respect tobodily injury, death or property damage sustained by third parties caused or alleged tohave been caused by Tenant or Tenant's Parties' use, storage, handling, treatment, generation, presence, discharge or release of Hazardous Materials.
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ARTICLE 12. DAMAGE OR DESTRUCTION
12. 1 Restoration,
12. 1. 1 Insured No loss or damage by fire or any other cause
resulting in either partial or total destruction of the Building, Improvements, the Site, anyportion thereof, or any improvements thereon, shall ( except as otherwise provided inSection 12. 1. 2, below) operate to terminate this Lease or to relieve or discharge Tenantfrom the payment of any Rent, or other amounts payable hereunder, as and when theybecome due and payable, or from the performance and observance of any of theagreements, covenants and conditions herein contained to be performed and observedby Tenant. Tenant covenants to repair, reconstruct, and /or replace or cause to berepaired, reconstructed and /or replaced the Site, any portion thereof, and any
improvements thereon, including any Personal Property owned by Tenant and used orintended to be used in connection with the Site, so damaged or destroyed. Tenant also
covenants that all insurance proceeds will be applied to the repair, reconstruction and /orreplacement described herein. Tenant' s failure to make such full repair, restoration and
replacement under any conditions in which it was elected or required so to do shallconstitute a default by Tenant under this Lease.
12. 1. 2 Uninsured Damage. Notwithstanding the provisions of Section12. 1. 1, if, during the Term, ( i) the Site or Improvements are totally destroyed orrendered inaccessible or if the remaining portion of the Site or Improvements isrendered unsuitable ( as defined herein) for Tenant's continued use, from a risk not
covered ninety percent ( 90 %) by the insurance required to be carried by Tenant underthis Lease, and ( ii) the cost of restoration exceeds fifty percent ( 50 %) of the
replacement cost of the Building or Improvements immediately before the damage ordestruction, then either Landlord or Tenant may elect to terminate this Lease by givingnotice to the other party within thirty ( 30) days after Landlord' s determination of therestoration cost and replacement value. The Improvements shall be deemed unsuitable
for Tenant' s continued use if, following a reasonable amount of reconstruction andallowing a reasonable time for resuming operations, Tenant' s business in the Site orImprovements could not be operated at an economic level substantially equivalent tothe economic level at which Tenant' s business was operating before the damageoccurred and the decline in such economic level is directly attributable to the damage.
12.2 Procedures for Repair and Restoration. In the event of any damage ordestruction, Tenant shall promptly give Landlord written notice of such damage ordestruction and the date on which such damage or destruction occurred. Tenant shall
promptly make proof of loss and shall proceed promptly to collect, or cause to becollected, all valid claims which Tenant may have against insurers or others based uponany such damage or destruction. Except as otherwise provided above, amounts
received on account of any losses pursuant to insurance policies shall be used andexpended for the purpose of fully repairing or reconstructing the portions of the Buildingor Improvements which has been destroyed or damaged.
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ARTICLE 13. CONDEMNATION
13. 1 Definitions. " Condemnation" means: ( a) the exercise of any governmental
power in eminent domain, whether by legal proceedings or otherwise, by a condemnor, and ( b) a voluntary sale or transfer to any condemnor, either under threat of
condemnation or while legal proceedings for condemnation are pending. " Date of
Taking" means the date the condemnor has the right to possession of the propertybeing condemned. " Award" means all compensation, sums or anything of value
awarded, paid or received on a total or partial condemnation. " Condemnor" means any
public or quasi public authority, or private corporation or individual, having the power ofcondemnation.
13. 2 Parties' Rights and Obligations to be Governed by Lease. If during the
Term there is any Condemnation of all or any part of the Site, the Improvements, or anyother improvements now or hereafter located on the Site, including any Personal
Property owned by Tenant and used or intended to be used in connection with the Site, Improvements or the Building, or any interest in this Lease, the rights and obligations ofthe parties shall be determined pursuant to the provisions of this Section 13.2. Each
party waives the provisions of the Code of Civil Procedure Section 1265. 130 allowingeither party to petition the Superior Court of the County of Sonoma State of California toterminate this Lease in the event of a partial taking or Condemnation of the Site.
13. 3 Total Condemnation. If the entirety of the Site and /or the entirety of theBuilding or Improvements is totally taken by Condemnation, this Lease shall terminateon the Date of Taking.
13. 4 Effect of Partial Condemnation. If a portion of the Improvements or Site are
taken by condemnation, this Lease shall remain in effect, except that Tenant may electto terminate this Lease if the remaining portion of the Site, Improvements or Building isrendered unsuitable ( as defined herein) for Tenant's continued use. The remaining
portion of the Building, Improvements or the Site shall be deemed unsuitable forTenant's continued use if, following a reasonable amount of reconstruction and allowinga reasonable time for resuming operations, Tenant's business in the Improvementscould not be operated at an economic level substantially equivalent to the economiclevel at which Tenant's business was operating before the damage occurred and thedecline in such economic level is directly attributable to the damage. Tenant must
exercise its right to terminate by giving Landlord written notice of its election within 90days after the nature and extent of the taking have been finally determined. Such notice
shall also specify the date of termination, which shall not be prior to the Date of Taking. Failure to properly exercise the election provided for in this Section 13. 4 will result inthis Lease continuing in full force and effect.
13. 5 Restoration of Improvements. If in Tenant's and Landlord' s judgment it is
reasonably possible and economically feasible to restore the Improvements, Tenantshall be entitled to use that portion of the Award allocable to the Improvements ( but notany portion allocable to the Site) as is necessary to restore or to add on to theImprovements so that the area and approximate layout of the Improvements will be
IRV # 4817- 4429 -6207 v1021
substantially the same after the Date of Taking as it was before the Date of Taking. If it
is not reasonably possible and economically feasible to so restore the area and layoutof the Improvements, the remaining provisions of this Article 13 shall govern the rightsof the parties.
13. 6 Award. If the Site, any portion thereof, or any improvements thereon aretaken in connection with a Condemnation, that portion of the Award allocable theretoshall belong to Landlord. Tenant shall be entitled to receive: ( a) the value of any
leasehold improvements, merchandise, and Personal Property owned by Tenant takenin connection with such Condemnation, ( b) loss of Tenant's or its subtenant' s business
goodwill, if agreed to be paid by the Condemnor or awarded by a court; and c) the valueof Tenant' s remaining interest in the leasehold of the Site, such remaining interest beingdetermined on the basis of the unexpired Term.
ARTICLE 14. ASSIGNMENT AND SUBLETTING
14. 1 Landlord' s Consent. Except for those regulations and standards as to
permitted financing and encumbrances, together with Tenant' s existing loans, Tenantshall not assign, without the Landlord' s prior written consent, which consent shall not beunreasonably withheld, sublet or otherwise transfer, whether voluntarily or involuntarilyor by operation of Law, this Lease, the Site, any portion thereof, or any improvementsthereon. If Tenant desires any such transfer or assignment, Tenant shall first providenotice to Landlord of the proposed transfer, the terms thereof and sufficient informationto allow landlord to determine, in its discretion, whether the proposed transferee has
the experience and financial capability to perform the obligations of Tenant pursuant tothis Lease. Landlord acknowledges and approves of existing affiliation with CourseCoInc., a California Corporation, as the management company and the partnership with 1- Golf, the food and beverage operators at the Site.
ARTICLE 15. TENANT DEFAULTS AND LANDLORD' S REMEDIES
15. 1 Defaults by Tenant. Tenant shall be in default under this Lease upon
occurrence of any of the following:
15. 1. 1 Tenant shall at any time be in default in the payment of Rent orany other monetary sum called for by this Lease for more than ten ( 10) days followingwritten notice from Landlord to Tenant; or
15. 1. 2 Tenant shall at any time be in default in the keeping andperforming of any of its other covenants or agreements herein contained, and shouldsuch other default continue for thirty ( 30) days after written notice thereof from Landlordto Tenant specifying the particulars of such default, or if such other default is of a naturethat curing such default will take more than thirty ( 30) days Tenant has failed to
commence such cure within such thirty ( 30) day period and to thereafter diligentlypursue completion of such cure; or
IRV # 4817- 4429 -6207 v1022
15. 1. 3 Tenant assigns, sells, transfers, conveys, encumbers,
hypothecates or leases the whole or any part of the improvements, the Site, any portionthereof, or any improvements thereon in violation of this Lease; or
15. 1. 4 Except as otherwise expressly permitted in this Lease, there is anychange in control of Tenant, or any other act or transaction involving or resulting in achange in the identity of the parties in control of Tenant or the degree of such control; or
15. 1. 5 Tenant is in default under any other provision of this Lease beyondexpiration of any applicable cure period.
15. 2 Remedies. Upon the occurrence of any such default, in addition to any andall other rights or remedies of Landlord hereunder, or by Law or in equity provided, Landlord shall have the sole option to exercise the following rights and remedies:
15. 2. 1 Terminate this Lease by giving Tenant notice of termination. On
the giving of such notice, all Tenant' s rights under this Lease shall terminate.
Immediately following notice of termination, Tenant shall surrender and vacate theImprovements, the Site, all portions thereof, and all improvements thereon, leaving
them in broom clean condition; and Landlord may reenter and take possession thereofand eject all parties in possession, or eject some and not others, or eject none.
Termination under this subsection shall not relieve Tenant from the payment of any sumthen due to Landlord or from any claim for damages previously accrued or thenaccruing against Tenant.
15. 2. 2 Without terminating this Lease , Landlord may at any time and
from time to time relet the Improvements, the Site, any portion thereof, or any
improvements thereon for the account and in the name of Tenant or otherwise. Any
reletting may be for the remainder of the Term or for a longer or shorter period. Landlord may execute any leases made under this provision either in Landlord' s nameor in Tenant' s name, and shall be entitled to all rents from the use, operation, andoccupancy of the Improvements, the Site, any portion thereof, and any improvementsthereon. Tenant hereby appoints Landlord its attorney in fact for purpose of suchleasing. Tenant shall nevertheless pay to Landlord on the due dates specified in thisLease the equivalent of all sums required of Tenant under this Lease, less the revenuereceived by Landlord from any reletting or attornment, plus Landlord' s expenses,
including ( by way of example), but not limited to, remodeling expenses, Landlord' s
brokerage and advertising costs and attorneys' fees and costs. No act by or on behalf
of Landlord under this subsection shall constitute a termination of this Lease unlessLandlord gives Tenant written notice of termination.
15. 2. 3 Even though Landlord may have relet the Building, Improvements, the Site, portions thereof, or improvements thereon, Landlord may thereafter elect toterminate this Lease and all of Tenant' s rights thereunder, including all of Tenant'srights in or to the Building, Improvements, the Site, any portion thereof , and /or any
improvements thereon.
IRV #4817 - 4429 -6207 v1023
15. 2.4 Landlord shall have the remedy described in California Civil Codesection 1951. 4 ( lessor may continue lease in effect after lessee' s breach andabandonment and recover rent as it becomes due, if lessee has right to sublet or
assign, subject only to reasonable limitations), as amended from time to time, and
successor statutes thereto.
15. 3 Damages. Should Landlord elect to terminate this Lease, Landlord shall beentitled to recover from Tenant, as damages:
15. 3. 1 The worth at the time of the award of the unpaid Rent that hadbeen earned at the time of termination of this Lease;
15. 3. 2 The worth at the time of the award of the amount by which theunpaid Rent that would have been earned after the date of termination of this Leaseuntil the time of award exceeds the amount of the loss of Rent that Tenant proves couldhave been reasonably avoided;
15. 3. 3 The worth at the time of the award of the amount by which theunpaid Rent for the balance of the Term of this Lease after the time of award exceedsthe amount of the loss of Rent that Tenant proves could have been reasonably avoided; and
15. 3.4 Any other amount ( and court costs) necessary to compensate
Landlord for all detriment proximately caused by Tenant's default, including costs ofalterations and improvements in connection with reletting.
15.4 Recapture of Site.
A. The parties agree that City, in City' s sole discretion, shall have theright, but not the obligation, to recapture part or all of the Site ( "Recapture ") subject to
the following terms and conditions. City shall have a onetime right of Recapture, whether the Recapture is later rescinded by City or taken to completion. City mayexercise its Recapture right after ten ( 10) years following the date of this Lease. To
affect a Recapture, City shall give Tenant a minimum of one hundred - eighty ( 180) days' prior written notice of City' s Recapture election ( " Election Notice "). In the Election
Notice, City shall indicate the specific portion of the Site which City intends to recaptureRecapture Portion ") and the use( s) that City intends for the Recapture Portion. The
Site remaining after the Recapture, if any, may be referred to as the " Remainder Site ". During the Term of the Lease, the Recapture Portion, or any part thereof, may not beused for any purposes related to golf.
B. City shall pay a price ( "Recapture Consideration ") to recapture the
Recapture Portion that is the greater of: ( i) the price ( "Release Price ") that allows for the
release of the Recapture Portion from the security for the Tenant' s loan as permitted bythe lender or ( ii) the going concern fair market value of Tenant' s right, title and interestin the Recapture Portion, including the Improvements plus the diminution in the goingconcern fair market value of Tenant's right, title and interest in the Remainder Siteresulting from the Recapture ( collectively, " FMV "). City shall pay the Release Price to1RV # 4817 - 4429 -6207 v10
24
the Lender. In the event that the FMV is greater than the Release Price, City shall paythe excess amount to Tenant.
C. FMV shall be determined as follows. Within forty -five ( 45) daysafter receipt of the Election Notice, Tenant shall provide City with a " Consideration
Notice' which sets forth both ( i) the Release Price and ( ii) a statement of FMV
Statement of FMV ") pursuant to subsection b, above. If City does not agree with theStatement of FMV and the parties do not enter into a written agreement of FMV withinthirty ( 30) days after City' s receipt of the Statement of FMV, FMV shall be determinedas follows. Within ninety ( 90) days following the end of the thirty ( 30) day negotiationperiod, an appraiser jointly hired by City and Tenant shall provide the determination ofFMV. Such appraiser shall hold the MAI designation; possess at least ten ( 10) yearsexperience in appraising local golf course properties; and be independent of and
unrelated to City and /or Tenant. City and Tenant shall each pay fifty percent ( 50 %) of
the fees and expenses of such appraiser. In performing the appraisal, the appraisershall follow the provisions of this Section 6 and any additional instructions agreed to bythe parties. The appraiser shall provide each party with a copy of the appraisal.
D. Upon payment of the Recapture Consideration by City and receiptof Lender' s consent for the Recapture, Tenant shall quitclaim the Recapture Portion toCity without warranty and the Lease shall terminate with respect to the RecapturePortion. Effective on the first day that Tenant is no longer permitted to receive theGross Receipts from the Recapture Portion, Base Rent and Annual Revenue
Thresholds for determining Percentage Rent shall be prorated according to the ratio ofi) Gross Receipts from the Remainder Site as of such date ( ii) Gross Revenue from the
entire Site as of immediately prior to such date. Any Lease obligation of Tenant inaddition to Base Rent that is not based upon Gross Receipts, or a component thereof, or does not automatically decrease proportionately to the reduction of the Site shall bepro -rated pursuant to the immediately prior sentence. No part of the balance existing in
the Capital Improvement Fund at the time of Recapture shall be allocated to theRecapture Portion. The entire balance shall continue to be subject to the provisions ofthe Lease for the benefit of the Remainder Site. Notwithstanding anything in the Leaseto the contrary, the parties agree that neither City' s issuance of an Election Notice, nor atotal or partial termination under this Section, shall be considered a Taking and thatTenant shall be entitled to no compensation except as expressly set forth in this Section6. Subject to any liabilities of City that may exist under the Lease independent of theRecapture, upon payment of the Recapture Consideration, Tenant shall fully releaseand discharge Landlord and the City from all and any manner of rights, demands, liabilities, obligations, claims, or cause of actions, in law or equity, of whatever kind ornature, whether known or unknown, whether now existing or hereinafter arising, whicharise from or relate in any manner to ( i) the sale of the Site, Recapture of part or all ofthe Site pursuant to Section 6 of this Second Amendment or any other Lease provision, the termination of Tenant's leasehold interest pursuant to the Lease, or the relocation ofTenant's business operations or the relocation of any person or persons, business orbusinesses, or other occupant or occupants located on the Site, including, withoutlimitation, the specific waiver and release of any right to any relocation benefits, assistance and /or payments under Government Code Sections 7260 et seq.
IRV #4817 - 4429 -6207 v1025
Relocation Assistance Law "), notwithstanding that such relocation assistance, benefitsand /or payments may be otherwise required under the Relocation Assistance Law orother state or federal law; and ( ii) compensation for any interest in Tenant' s businessoperations or the Site including, but not limited to, land and improvements; leaseholdbonus value; fixtures, furniture, or equipment; loss of business goodwill; severance
damage; attorneys' fees or any other compensation of any nature whatsoever. Tenant
acknowledges and agrees that the release and waiver set forth in this paragraph ismaterial consideration for Landlord' s execution of this Second Amendment on the termsset forth herein and that, but for this release and waiver, Landlord would not haveentered into this Second Amendment. It is hereby intended that the above releaserelates to both known and unknown claims that the Tenant may have, or claim to have, against the Landlord or the City with respect to the subject matter contained herein orthe events relating thereto. The parties acknowledge and agree that the waiver and
release contained in this Section shall not have the effect of excluding any element ofvalue mentioned in such waiver and release from FMV. Such waiver and release is
solely intended to bar Tenant from obtaining any consideration from City resulting fromthe Recapture other than the Recapture Consideration. By releasing and foreverdischarging claims both known and unknown which are related to or which arise underor in connection with the items set out above, the Tenant expressly waives any rightsunder California Civil Code Section 1542, which provides: " A GENERAL RELEASE
DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW ORSUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR." Notwithstanding such waiver and release byTenant and the payment of Recapture Consideration, City shall indemnify, defend andhold Tenant, CourseCo and their principals, officers, directors, and employees harmlessfrom and against any cost or liability owing to any third party as a result of theRecapture, including attorneys fees and termination fees payable under existingmaintenance or construction contracts that apply to the Recapture Portion. Together
with the Consideration Notice, Tenant shall provide City with a written estimate made ingood faith of the likely amount of City' s obligation under the indemnity described in theimmediately preceding sentence. City shall have forty -five (45) days following its receiptof such estimate to decide whether to continue the Recapture. If Tenant does not
receive a written notice from City within such forty -five ( 45) day period stating that Cityis proceeding with the Recapture, City shall have elected to irrevocably rescind theRecapture. The rights and obligations of City to proceed with or to rescind theRecapture shall not be affected by the actual amount of City' s indemnity obligation solong as Tenant has prepared the estimate of such obligation in good faith with the factsknown to Tenant at the time of estimate preparation.
E. In the event that following the Recapture, it would not be
reasonably feasible to operate a golf course comparable in size and quality to the NorthCourse or the South Course on the Remainder Site or, at Tenant's election, in the eventthat the fair market value of the Remainder Site, valued as a golf property as of theRecapture, would be seventy -five percent ( 75 %) or less of the fair market value of the
entire Site, valued as a golf property as of immediately prior to the Recapturecumulatively, " Triggering Events "), Tenant shall have the right to require City to
IRV #4817- 4429 -6207 v1026
recapture the entire Site. To exercise such right, Tenant shall provide written notice
Full Recapture Notice ") to City within thirty ( 30) days after receipt of City' s ElectionNotice. In such case, the Recapture Portion shall be the entire Site. City shall forty -five
45) days following receipt of a Full Recapture Notice to decide whether to continue theRecapture. If Tenant does not receive a written notice from City within such forty -five45) day period stating that City is proceeding with the Recapture, City shall have
elected to irrevocably rescind the Recapture. The rights and obligations of City to
proceed with or to rescind the Recapture shall not be affected by any later conclusionsregarding a Triggering Event so long as Tenant has prepared the Full Recapture Noticewith a good faith belief that a Triggering Event would occur due to the Recapture.
15. 5 Cumulative. Each right and remedy of Landlord provided for herein or nowor hereafter existing at Law or in equity, by statute or otherwise shall be cumulative andshall not preclude Landlord from exercising any other rights or remedies provided for inthis Lease or now or hereafter existing at Law or in equity, by statute or otherwise. No
payment by Tenant of a lesser amount than the Rent nor any endorsement on anycheck or letter accompanying any check or payment of Rent shall be deemed an accordand satisfaction of full payment of Rent; and Landlord may accept such payment withoutprejudice to Landlord' s right to recover the balance of such Rent or to pursue otherremedies.
ARTICLE 16. MISCELLANEOUS
16. 1 Holding Over. If Tenant shall hold over on the Site after the expiration ofthe Term hereof with the consent of Landlord, such holding over shall be construed tobe only a tenancy from month to month, subject to all the covenants, conditions andobligations contained in this Lease. Tenant hereby agrees to pay to Landlord asmonthly rental 1/ 12th of the amount which is one hundred fifty percent ( 150 %) of the
highest amount of total annual Rent paid by Tenant to Landlord during the last year ofthe Term.
16. 2 Attorneys' Fees. In the event that any action is brought by either partyhereto as against the other party hereto for the enforcement or declaration of any rightor remedy in or under this Lease or for the breach of any covenant or condition of thisLease, the prevailing party shall be entitled to recover, and the other party agrees topay, all fees and costs to be fixed by the court therein including, but not limited to, attorneys' fees.
16. 3 Quiet Possession. So long as Tenant is not in default under this Lease andis paying the Rent and performing all of the covenants and conditions of this Lease, Tenant shall quietly have, hold and enjoy the Site during the Term without interruptionor disturbance from Landlord or any other persons claiming by, through or underLandlord.
16.4 Effect of Lease on Original Lease, as Amended. Except for the purpose of
explaining the past relationship of Landlord and Tenant, this Lease shall supersede theOriginal Lease, and any amendments.
IRV #4817- 4429 -6207 v1027
16. 5 Security Deposit. As part of the Original Lease, Tenant has submitted a
Security Deposit to be used by the City to offset costs for any material breach of theterms of this Lease. Tenant acknowledges that the City may retain the Security Depositon file. If not used for a material breach of this Lease, Landlord shall refund the amountat the end of the Lease.
16. 6 Force Majeure. Except as to the payment of Rent, subject to the limitations
set forth below, performance by either party hereunder shall not be deemed to be indefault, and all performance and other dates specified in this Lease shall be extended, where delays are due to: remediation or removal of previously undiscovered HazardousMaterials that may be required by Law, regulation or prudent business practice; war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes;
governmental restrictions or priority; litigation, including court delays; severe weather; lack of reasonable availability of labor or materials; acts or omissions of the other party; or acts or failures to act of the City ( in its capacity as a municipal corporation only andnot as a Landlord under this Lease) or any other public or governmental agency or
entity. An extension of time for any such cause shall be for the period of the enforceddelay and shall commence to run from the time of the commencement of the cause, ifnotice by the party claiming such extension is sent to the other party within thirty ( 30) days of the commencement of the cause. Times of performance under this Lease may
also be extended in writing by the mutual agreement of Landlord and Tenant. Tenant
expressly agrees that adverse changes in economic conditions, either of Tenant
specifically or the economy generally, changes in market conditions or demand, and /orTenant's inability to obtain financing or other lack of funding, or to complete the
Improvements shall not constitute grounds of enforced delay pursuant to this Section16. 6. Tenant expressly assumes the risk of such adverse economic or market changesand /or financial inability, whether or not foreseeable as of the Commencement Date.
16. 7 Notices. All notices to be given hereunder shall be in writing and mailed
postage prepaid by certified or registered mail, return receipt requested, or delivered bypersonal or courier delivery, or sent by facsimile ( immediately followed by one of thepreceding methods), to Landlord' s address and Tenant' s address set forth in BasicInformation Sections 1 and 2, or to such other place as Landlord or Tenant maydesignate in a written notice given to the other party. Notices shall be deemed served
upon the earlier of receipt or three (3) days after the date of mailing.
16. 8 Waiver. No waiver of any breach of any of the terms, covenants,
agreements, restrictions or conditions of this Lease shall be construed to be a waiver ofany other breach of the same or other terms, covenants, agreements, restrictions andconditions hereof.
16. 9 Surrender. Upon the expiration or other termination of the Term of thisLease, and notwithstanding anything herein contained to the contrary, Tenant shallsurrender to Landlord the Building, Improvements, the Site, all portions thereof, and allimprovements thereon, broom clean and in good condition and repair, reasonable wearand tear excepted.
IRV #4817 -4429 -6207 v1028
16. 10 Binding on Successors and Assigns. Subject to the restrictions set forth
herein regarding assignment of the Leasehold Interest, each of the terms, covenantsand conditions of this Lease shall extend to and be binding on and shall inure to thebenefit of not only Landlord and Tenant, but to each of their respective heirs,
administrators, executors, successors and assigns. Whenever in this Lease reference
is made to either Landlord or Tenant, the reference shall be deemed to include,
wherever applicable, the heirs, administrators, executors, successors and assigns ofsuch parties, the same as if in every case expressed.
16. 11 Landlord' s Ric ht to Enter Buildin• and the Site, Landlord and its
authorized representatives shall have the right to enter the Improvements, and the Siteat all reasonable times, after giving Tenant twenty -four ( 24) hours prior written noticeexcept in emergency in which case no notice shall be required), for any reasonable
purpose, including: to determine whether the Site, Improvements, the Building, or anyother improvements on the Site is in good condition and whether Tenant is complyingwith its obligations under this Lease; to do any necessary maintenance and to make anyrestoration to the Improvements, the Site, any portion thereof, or improvements thereonthat Landlord has the right or obligation to perform; to serve, post or keep posted anynotices required or allowed under the provisions of this Lease; to post " for rent" or " forlease" signs during the last two ( 2) years of the Term, or during any period while Tenantis in default; to show the Improvements, and the Site to prospective lenders, brokers, agents, buyers, tenants or persons interested in an exchange Landlord shall have theright but not the obligation to maintain and repair, remove or replace, add to or generallyimprove, utilities and the facilities owned by Landlord, another public agency or public
utility company, whether under, on, upon, or over the Improvements, the Site, any
portion thereof, or any improvements thereon; and Landlord has the right but not theobligation to do any act or thing reasonably necessary for the safety or preservation ofthe Improvements, and the Site, any portion thereof, or any improvements thereon ifany excavation or other construction is undertaken or is about to be undertaken on anyadjacent property or nearby street. Landlord shall not be liable in any manner for anyinconvenience, disturbance, loss of business, nuisance, or other damage arising out ofLandlord' s entry on the Improvements, the Site, any portion thereof, or any
improvements thereon as provided in this Section 16. 11 other than any propertydamage, bodily injury, or death caused by the sole negligence or willful misconduct ofLandlord, its agents, employees or Tenants. Tenant shall not be entitled to an
abatement or reduction of Rent if Landlord exercises any rights reserved in this Section16. 11
16. 12 Disclaimer of Partnership. The relationship of the parties hereto is that ofLandlord and Tenant, and it is expressly understood and agreed that Landlord does notin any way nor for any purpose become a partner of Tenant or a joint venturer withTenant in the conduct of Tenant's business or otherwise.
16. 13 No Recordation. Tenant shall not record this Lease or any Memorandum
of this Lease, or similar document except to the extent required ( i) for Tenant to be ableto obtain a leasehold title policy insuring Tenant' s Leasehold Interest in the Site, or ( iii)
IRV # 4817 -4429 -6207 v1029
by any Leasehold Mortgagee. Any such document shall be in a form reasonablysatisfactory to Landlord.
16. 14 Quitclaim. At the expiration or other termination of the Term, Tenant shallexecute, acknowledge and deliver to Landlord within thirty ( 30) days after written
demand from Landlord to Tenant, any quitclaim deed or other document required byany reputable title company to remove the cloud of this Lease from the Building, theSite, any portion thereof, or any improvements thereon.
16. 15 Interpretation. The titles to the sections of this Lease are not a part of thisLease and shall have no effect upon the construction or interpretation of any part of thisLease. As used in this Lease, masculine, feminine or neuter gender and the singular orplural number shall each be deemed to include the others where and when the contextso dictates. The word " including" shall be construed as if followed by the words "withoutlimitation." This Lease shall be interpreted as though prepared jointly by both parties.
16. 16 Severability. If any term, provision, condition or covenant of this Lease orits application to any party or circumstances shall be held, to any extent, invalid orunenforceable, the remainder of this Lease, or the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom orwhich it is held invalid or unenforceable, shall not be affected, and shall be valid andenforceable to the fullest extent permitted by Law.
16. 17 Legal Advice. Each party represents and warrants to the other thefollowing: they have carefully read this Lease, and in signing this Lease, they do so withfull knowledge of any right which they may have; they have received independent legaladvice from their respective legal counsel as to the matters set forth in this Lease, orhave knowingly chosen not to consult legal counsel as to the matters set forth in thisLease; and, they have freely signed this Lease without any reliance upon anyagreement, promise, statement or representation by or on behalf of the other party, ortheir respective agents, employees, or attorneys, except as specifically set forth in thisLease, and without duress or coercion, whether economic or otherwise.
16. 18 Time of Essence. Time is expressly made of the essence with respect tothe performance by the parties of each and every obligation and condition of this Lease.
16. 19 Nonliability. No member, official or employee of Landlord shall be
personally liable to Tenant, or any successor in interest, in the event of any default orbreach by Landlord or for any amount which may become due to Tenant or itssuccessors, or on any obligations under the terms of this Lease. Tenant hereby waives
and releases any claim it may have against the members, officials or employees ofLandlord with respect to any default or breach by Landlord or for any amount which maybecome due to Tenant or its successors, or on any obligations under the terms of thisLease.
IRV #4817. 4429 -6207 v1030
16. 20 Applicable Law. The laws of the State of California, without regard toconflict of Laws principles, shall govern the interpretation and enforcement of thisLease.
16. 21 Covenants and Conditions. Each obligation of the parties hereunder,
including, without limitation, Tenant' s obligation for the payment of Rent, shall be
construed to be both a covenant and a condition of this Lease.
16. 22 integration. This Lease, including all recitals of exhibits and attachmentsto each of the foregoing, constitute the entire agreement between the parties and thereare no conditions, representations or agreements regarding the matters covered by thisLease which are not expressed herein.
16. 23 Amendments to this Lease. Landlord and Tenant agree to mutuallyconsider reasonable requests for amendments to this Lease that may be made by eitherof them, subtenants of Tenant, lending institutions or bond counsel or financialconsultants to Landlord or Tenant, provided such requests are consistent with thisLease and would not materially alter the basic business terms included herein. No
amendment hereto shall be effective unless in writing and signed by the parties hereto.
16. 24 Compliance With Laws. Tenant, at Tenant' s expense, shall comply with
all applicable Hazardous Materials Laws, statutes, labor codes, laws, codes, rules,
orders, zoning, ordinances, directives, regulations, regulations, permits, or other
requirements of federal, state, county, municipal, or other governmental authorities
having jurisdiction, now in force or which may hereafter be in force ( individually " Law" and collectively " Laws "), which shall impose any duty upon Landlord or Tenant withrespect to the use, occupancy, or alteration of the Improvements, the Site, any portionthereof, or any improvements thereon.
16. 25 Commission. Each party represents to the other that it has not beenrepresented by any broker in connection with this Lease, and that no real estate
broker's commission, finder' s fee or other compensation ( individually and collectively, Commission ") is due or payable. Each party agrees to indemnify and hold the other
harmless from any claims or liability, including reasonable attorneys' fees, in connectionwith a claim by any person for a Commission based upon any statement, representationor agreement of the other party.
16. 26 Relocation Waiver. Tenant fully releases and discharges Landlord from: i) all and any manner of rights, demands, liabilities, obligations, claims, or cause of
actions, in law or equity, of whatever kind or nature, whether known or unknown,
whether now existing or hereinafter arising, which arise from or relate in any manner tothe relocation of Tenant's business operations or the relocation of any person orpersons, business or businesses, or other occupant or occupants located on the Site
following expiration or other termination of this Lease, including the specific waiver andrelease of any right to any relocation benefits, assistance and /or payments under
Government Code Sections 7260 et seq. ( " Relocation Assistance Law "),
notwithstanding that such relocation assistance, benefits and /or payments may be
IRV # 4817 - 4429 -6207 v1031
otherwise required under the Relocation Assistance Law or other Law; and ( ii)
compensation for any interest in Tenant' s business operations, the Building, the Site, any portion thereof, or any improvements thereon, including leasehold bonus value, fixtures, furniture, or equipment, loss of business goodwill, severance damage,
attorneys' fees or any other compensation of any nature whatsoever. Tenant
acknowledges and agrees that the release and waiver set forth in this Section ismaterial consideration for Landlord' s lease of the Site and sale of the Building to Tenanton the terms set forth herein and that, but for this release and waiver, Landlord wouldnot have entered into this Lease.
16. 27 Estoppel Certificates. Either Party hereto shall, from time to time duringthe Term upon not less than twenty (20) days' prior written notice from the other Party, execute, acknowledge and deliver to the other Party, or such persons or entities
designated by such other Party, a statement in writing certifying: ( a) the
Commencement Date and Expiration Date of this Lease, ( b) that this Lease is
unmodified and in full force and effect ( or, if there have been modifications, that theLease is in full force and effect as modified and stating the modifications), ( c) that there
are no defaults under this Lease ( or if so, specifying the same), ( d) the dates, if any, towhich the Rent has been paid, and ( e) any other information that may be reasonablyrequired by any such persons or entities. Any such certificate delivered pursuant to theprovisions hereof may be relied upon by the other Party or any prospective purchaser orEncumbrancer of its estate. The City Manager shall be authorized to execute, acknowledge and deliver any such certificate on behalf of City.
16. 28 Counterparts. The parties hereto agree that this Lease may be executedin counterparts, each of which shall be deemed an original, and said counterparts shall
together constitute one and the same agreement, binding all of the parties hereto, notwithstanding all of the parties are not signatory to the original or the samecounterparts. For all purposes, including, without limitation, recordation, filing and
delivery of this Lease, duplicate unexecuted and unacknowledged pages of the
counterparts may be discarded and the remaining pages assembled as one document.
IRV #4817- 4429 -6207 v10
Signatures on following page]
32
IN WITNESS WHEREOF, the parties have executed this Lease as of the
Effective Date.
ATTEST:
Anne Currie, City Clerk
APPROVED AS TO FORM:
Michelle Marchetta Kenyon, City Attorney
APPROVED AS TO FORM:
By: Name:
Its:
IRV #4817-4429-6207 v1033
LANDLORD:
CITY OF ROHNERT PARK, a California
Municipal corporation
By: Name: Gabriel Gonzalez
Its: City Manager
AND--
TENANT:
ROHNERT PA
California Ippite' c3y. ( 2- R6r)
By: Name:
Its: Presiden
GOLF, 4LP, a
ership
6 EA_
By: Nam 41-4 C. C-LASC, "ANL, Its: f Financial Officer
IN WITNESS WHEREOF, the parties have executed this Lease as of theEffective Date.
ATTEST:
JoAnne Currie, City erk
APP
Mich° Ile Marchetta Kenyon, City Attorney
VED A T
APPROVED AS TO FORM:
By: Name:
Its:
IRV #4817- 4429 -6207 vi 033
LANDLORD:
CITY OF ROHNERT PARK, a CaliforniaMunicipal corporation
By: Name: Gabriel Gonzalez
Its: City Manager
AND --
TENANT:
ROHNERT PARK GOLF, tLP, a
California limited partnershipb• xriA`
By: Name: 740/f * , ao . 44iC.
Its: President
By: Nam. • * 4 C, C sck1 /4
Its: _ f Financial Officer
0
EXHlf3IT A — Real Property DescriptionPage 1 of 11
GOLF COURSE SOUTH
The land referred to is situated in the State of Califonua, County of Sonoma, City ofRohnert Park and is described as follows:
Commencing at the northeast corner of Lot 4 of the Rohnert Park Industrial SubdivisionNo. 2, as recorded in Book 88 of Maps, at page 18, Sonoma County Records; thenceNorth 64 °20' 27" East, 60.00 feet; thence South 25 °39' 33" East, 592. 22 feet to the Pointof Begiiming; thence from said point of beginning North 38 °East, 877. 49 feet to theSouth Line of Golf Course Drive; thence along said south line South 62 °28' East, 699.23feet to the beginning of a curve to the left with a radius of 914.00 feet, through an internalangle of 30 °51' a length of 492. 13 feet; thence North 86 °41' East, 1979.81 feet to thebegriming of a curve to the left with a radius of 803. 00 feet; through an internal angle of7 °21' 47" a length of 103. 19 feet; thence South 10 °40' 47" East 241. 45 feet to a point onthe west boundary line of Country Club Estates Subdivision No, 2 Unit " A ", filed inBook 200 of Maps pages 23 & 24, Sonoma County Records; thence continuing along the
said subdivision boundary, the following courses;
South 10 °40' 47" East, 325. 45 feet;
South 2 °23' East, 137. 86 feet to the most northwest corner of Lot 22, Country ClubEstates Subdivision No. 2 Unit " E ", filed for record in Book 242 of Maps, pages 41 & 42;
thence continuing along said subdivision boundary, the following courses; South 2 °23' East, 1022. 14 feet;
South 85 °30' West, 420.00 feet to the southeast corner of Lot 23, Country Club EstatesSubdivision No. 6, filed for record in Book 215 ofMaps, pages 24 through 28, Sonoma
County Records; thence continuing along the said Country Club Estates No. 6subdivision boundary, the following courses;
North 10 °30' West, 570.00 feet;
North 3 °41' West, 740.00 feet;
South 77 °37' West, 400.00 feet;
South 71 °45' West, 215.00 feet;
South 4 °08' East, 44L00 feet to the northwest corner of Lot 63, Country Club EstatesSubdivision No. 2 Unit 13, filed for record in Book 215 of Maps, pages 13 through 15,
Al
EXHIBIT A — Rmal Property DescriptionPage %w« D
Sonoma County Records; thence continuing along said subdivision No. 2 Unit Bboundary, the foliowing courses;
South 4" 08` East, 7X9. 00feet;
South 85" 30' West 420. UOfeet;
North 8" 30` West 398. 00 feet to the southeast corner of Lot 35, Country Club EstatesSubdivision No, 2 Unit C, filed for record iu Book 220ufMaps, pages 34 through 36,
Sonoma County Records; thence continuing along said subdivision No. 2 Unit Cboundary, the foliowing courses;
North O° 2O` West, O32. O0feet;
North 70°West 105. 00 feet;
South 86, 56` West 560.O0feet;
South 48° 07' West 265. 00 feet to the northeast corner of Parcel A, Country Club EstatesSubdivisionNo. 2 Unit D, filed for record in Book 229nfMaps, pages 9l6t32, Sonoma
County Records; thence continuing along said Subdivision No. 2 Unit D boundary, thefollowing courses;
South 4N" 07' West, 545. 0Ofeet;
South 2S° 39` 33'' East, 350. 00 feet;
South 5° 12' Wont, 140. 00 feet;
South 33° 37' East, 450,00 feet;
South 25«39` 33'' East, 539. D8 feet 10 the northwest corner of Lot x8` Country ClubEstates Subdivision No. 1 Unit A, filed for record in Book l96ofMaps, pages 16
through 19, Sonoma County Records; thence continuing along the Subdivision No. lUnit
A boundary, the following courses;
South 25" 39` 39" East, 65U. l2feet;
South 6° 44' West, 280, 00 feet;
South 45=07` East, 500. 00 feet;
South 2j"} 9'] 3" East, \ 042Yfeet;
thence leaving said Subdivision No. 1 Unit A boundary South 25" 39' 33" East, 89. 69 feetto the northwest corner of Sonoma Racquet Club Subdivision, filed for record in Book
261 ofMaps, pages 1 through 8, Sonoma County Records; thence along the west line of
Sonoma Racquet Club South 25° 39' 33" East, 791. 02 feet to the north right of way line of
Rohnert Park Expressway; thenee along said north right ofway line of Rolmert ParkA2
A— Real Property DescriptionPage 3/ fl1
ord 8Y^}' 26`'\ ox 560 0fe ko the east dof way Uueof ey o bExpressway `_,
Westero Pacific Railroad; thence along said east right ofway North 25° 39' 33" West, 4667. 95 feet to the point of beginning. Containing 129. 08 acres.
Sonoma County Assessor Parcel Numbers 143- 360- 46, 47, 48, and 49.
GOLF COURSE NORTH
The land referred to is situated in the State of California, County of Sonoma, City ofRohnert Park and is described as foliows:
PARCEL ONE:
Beginning at the most nQrthwesterly corner ofLot 9, Mountain Shadows SubdivisionUnit II, filed for record in Book 272 of Maps, pages 31 through 33, Sonoma CountyReuurJu' tb000euoot uiugulongauid
ouu1oi` Shadows Soh 6vioiool}oit D boundary, Records;
the following courses;
S 36" 29` 19" E, 793. 48 feet;
889" 59` 32" E, 82. l0 feet oo the most westerly corner u[ Lot 36, Mountain ShadowsSubdivision Unit 1, filed for record in I3ook 257 ofMaps, pages 16 through 20, Sonorna
County Records; thence continuing along said Subdivision Unit I boundary, the followingcourses;
389" 59` 32" E, 5lO.0Ofeet;
Q24"28' 27" EL77620feet;
83lv2j` l0" W, 1, 280.40 feet to thc northerly right of way line of Golf Course Drive; thence along said northerly right of way line N62" 2D` O0" W, 27668 feet toutangentcurve to the right having u radius o[ 25. 00 feet and uo internal angle of90"0O` 00''; thence
leaving said right o[ way and along said curve ] 0. 27 feet; { bc000N27° 32` O0^ E' 274. 99feet to the south east comer of the Lands of Sonoma County Red Lion hut as described indocument number 19920149094 of official records, Sonoma Cotmty Records; thence
continuing along said Lands of Sonoma County Red Lion Inn, the following courses; N34" 0V` l7'` E, 295. 09feet;
N38«42` 59" E, 497. 3l feet; A3
EXHIBIT A — Real Property DescriptionPage 4 of 11
N 20° 53' 59" W, 455. 44 feet;
N 38 °49' 36" W, 70. 75 feet;
S 86° 31' 13" W, 418. 79 feet;
S 76° 36' 01" W, 12.44 feet;
S 03 °05' 00" W, 412.47 feet;
N 86 °55' 00" W, 5. 00 feet;
S 03 °05' 00" W, 100.00 feet;
N 86 °55' 00" W, 6.00 feet;
S 03° 05' 00" W, 42. 00 feet;
S 86 °55' 00" E, 6. 00 feet;
S 03° 05' 00" W, 61. 00 feet;
S 86° 55' 00" E, 5. 00 feet;
S 03 °05' 00" W, 265. 20 feet;
S 6 °35' 00" W, 92. 00 feet to the northerly corner of Lot 137, Mountain ShadowsSubdivision Unit 1, filed in Book 257 at pages 16 through 20, Sonoma County Records; thence along said Lot 137 north westerly line S 65 °16' 17" W, 216. 53 feet to thesoutheasterly corner of the Lands of Red Lion Plaza Associates 11, as described indocument number 19900119023 of official records, Sonoma County Records; thencealong the easterly line of said Lands (AM Lion Plaza Associates 1.1 and to theprolongation thereof, N 05 °42' 00" W, 636. 49 feet; thence N 27 °15' 00" W, 726.55 feet; thence N 35° 47' 54" W, 129. 56 feet to a non- tangent curve to the right having a radius of916. 87 feet, an internal angle of 23 °45' 07" and a radial to said curve bearing N61 °39' 28" E to point ofcusp; thence N 47 °35' 43" E, 158. 35 feet; thence N 67 °08' 38" E, 142. 42 feet; thence N 00 °00' 28" W, 100.00 feet to the northerly boundary of the lands ofRedwood Empire Title Company as shown on that Record of Survey recorded in Book168 of Maps at Page 34, Sonoma County Records; thence continuing along said northerlyboundary N 89 °59' 32" E, 176. 03 feet to the point of beginning. Containing 35. 80 acres.
Sonoma County Assessor Parcel Number a portion of 160 -01.0 -026
PARCEL TWO
Beginning at the southeast corner of Lot 136, Mountain Shadows Subdivision Unit 1, filed for record in Book 257 of Maps, pages 16 through 20, Sonoma County Records; thence continuing along said Mountain Shadows Subdivision Unit 1 boundary, thefollowing courses;
N 31 °25' 10" E, 1, 150.79 feet;
N 60 °08' 43" E, 143. 98 feet;
A4
EXHIBIT A — Real Property DescriptionPage 5of11
S 89 °12' 02" E, 980.00 feet;
N 00 °47' 58" E, 25. 00 feet;
S 89 °12' 02" E, 255. 00 feet;
N 00 °47' 58" E, 85. 00 feet;
S 89° 12' 02" E, 108. 68 feet to a tangent curve to the left having a radius of 330.00 feet
and an internal angle of 34 °33' 26 "; thence along said curve 199. 04 feet; thence
N 56 °14' 32" E, 116. 68 feet; thence leaving said subdivision boundary S 33 °45' 28" E,
530.00 feet to the northeast corner of Lot 1, Mountain Shadows Subdivision Unit III,
filed for record in Book 294 of Maps, pages 19 through 21, Sonoma County Records;
thence continuing along said Mountain Shadows Subdivision Unit III boundary, the
following courses;
S 68 °55' 00" W, 792. 70 feet;
N 83 °00' 00" W, 615. 91 feet;
S 60° 00' 00" W, 185. 00 feet;
S 53 °20' 00" W, 490,00 feet to the most northerly corner of Lot 130, of said MountainShadows Subdivision Unit I; thence along said Mountain Shadows Subdivision Unit I
boundary, the following courses;
S 56 °17' 00" W, 423. 57 feet;
S 34° 17' 00" W, 177. 91 feet to the northerly right of way line of Golf Course Drive; thence along said northerly right of way line of Golf Course Drive, N 62 °28' 00" W, 329.99 feet to the point of beginning. Containing 31. 80 acres.
Excepting therefrom the lands as described in document number 19970075119 of officialrecords, Sonoma County Records
Sonoma County Assessor Parcel Number 160 -010 -021
PARCEL MELEE:
Beginning at the most southeasterly corner of Lot 52, Mountain Shadows SubdivisionUnit 11, as filed for record in Book 272 of Maps, Pages 31 through 33, Sonoma County
Records; thence from said point of beginning and continuing along said subdivision
boundary, the following courses;
S 89 °43' 50 "W, 453. 57 feet;
S 68° 30' 13" W, 910.00 feet to a point on the easterly line of Lot 53, Mountain ShadowsSubdivision Unit I, filed for record in Book 257 of Maps, pages 16 through 20, Sonoma
A5
EXHIBIT ^— Real Property DescriptionPage Vv[ 11
County Records; thence confirming along said Subdivision Unit 1 boundary, the followingcourses;
324"28` 2?" fL353. Ol feet;
S89pl2`02" E, 568, 44feet;
N 57, 29~23" E' 194.42 feet;
N 81° 46' 21'' E` 740. 91 feet to thc north cast corner ofParcel " E", of said Mountain
Shadows Subdivision Unit l; thence 033°45' 28'' W. 415. 00 feet; thence N 36v28` 32 , W, 136. 80 feet to the point ofbeginriing. Containing 1627 acres.
Sonoma County Assessor Parcel Number l60-Ol0' 0O3
PARCEL FOUR:
Beginning at the south west corner of Pu000 " D", Coleman ValIey SubdivsionNo. 1,
filed for record in Book 268 of Maps, pages 12 through 15, Sonoma County Records; thence from said point of beginning, continuing along said Coleman Valley Subdivision
No. 1 boundary, the following courses;
S 88" 2Q` 22" E. 422.24feet;
N34"4l` l6`^8' 5l929feet;
N20" l0`l8" W, 608. 40 fee ;
N 14" 22` 28" W, 52. 34 feet;
N32»00`00T, 266.00feet;
N60^37` I3'' I, 34. 5l feet;
S 89" 54' 25" EL257.75 feet;
S27^ 2]`00" E, 76214feet;
S O5" 25` 29" B, 7y.96feet;
S 02" 56` 01" E 60.00 feet;
S 18^ 3A` O0' W, 420.0Ofeet;
S 36° 04' 19" W, 184. 90 feet;
S 50" l4`32" W, 420.0Ufeet;
S 93° 45` 28" E, 102.00 feet;
S56" 14` 32" W, 24j.08feet;
N33" 45` 28" W, 2. 00 feet;
O56»l4`32`^ TV, 157. 56 feet to the easterly right of way line of Five Creeks; thenceleaving said Coleman VaIley Subdivision No. 1 boundary and continuing along said
A6
BX} IBrrA—Revx Property DescriptionPage 7 of 11
easterly right oC way, N 33" 45` 28" W` 700. 00 feet; thence yJ30pl9' 2T` W, 49. 64 feet tothe point o[ beginning. Containing 24. 84 acres.
Excepting therefrom thc lands as deseribedin document numbers 19970103117 & 2001006936 of official records, Sonoma County Records
Sonoma County Assessor Parcel Numbers 143- 280-02l, 06l& 07Q
PARCEL FIVE:
Beginning uttbesoutbpxest000xeru[ Iut8, Colemuu\ 7a8ny8ubdiviuionNo. l, 6lodfo« record in Book 268 ofMaps, pagcs 12 through 15, Sonoma County Records; thence fromsaid point of beginning uodcoodouinguluogooidCo\cnuuol/ uDcyGuhJiviuiouNo. 1
boundary, the foliowing courses;
N5G"} 4` 32' E'? 37. 78feet;
Nl8o34`0O" E, 799.40feet;
N27o23' 00" W, 824. 77 feet tou point ou( ho south line o[ Lot l24, Coleman Valley
Subdivision No. 2, filed for record iu Book 285of Maps, pages 2O through 22, Sonoma
County Records; thence continuing along said Coleman Valley Subdivision No. 2boundary, the foliowing courses;
889" 54`%5" E, 495. O0feet;
S5O, 45` 0O" E, 610.63feet;
g7l" j0`0O" E, 526.34feet;
Dll=5O` 00' E` ll2.48 feet 10 the north west corner ofParcel "A" as showri on Coleman
Valley Subdivision No 3, files for record in Book 309 of Maps, pages 25 & 26, Sonoma
County Records; thence continuing along said Coleman Valley Subdivision No. 3boundary 8l1" 5O` 0O" E, 319. j2feet to the north east oorner ofLot 17, Colerrian VaIleySubdivision No. 4C, filed for record in Book 334 ofMaps, pages 27 & 28, Sonoma
County Records; thence continuing along said Coleman Valley Subdivision No. 4Cboundary, the following courses;
S84" O0' 00" W, 400. 00feet;
N8U°l5` O0" W. 3l7.00feet;
8l5"47` O0" 97' 55l. 79 feet to the north westerly corner of Lot 3b, Coleman ValleySubdivision No. 4A, filed for record in Book 334 of Maps, pages 18 & 19, Sonoma
A7
EXHIBIT x.— Real Property DmuipUvnPage xm[ D
County Records; thence continuing along said Coleman Valley Subdivision No. 4Aboundary, the following courses;
S 15" 47` 00`^9J, 228. 21 feet;
O58" 02` 00" W' 940. U8 feet to the south cast comer of Lot ln[ said Coleman Valley
Subdivision No. 1; thence continuing along said Coleman Valley Subdivision No. 1
boundary, the foliowing courses;
Y{ 42' 31" 0I`W' 28. 66feet;
N5d"35` O3" W. 39.8Ofeet;
yJ67«24`5J` VV` 72. 10feet;
N5U°54` Ol?W, 68. b9feet;
N44^04' O3" T9, 64. 3l feet;
Iq33" 45` 28~ W, 188. 00 feet hn the point ofbeginning,
Containing 37.97 acres.
Sonoma County Assessor Parcel } Jnubcr\ 43- 28O- 075
PARCEL SIX;
Beginning at the most northerly corner o[ Parcel Two described above; thence from saidpoint 0[ beginning and along the southerly Right of Way o[ Fairway Drive N 56p14` 32" E, ll4.56 feet bou tangent curve 0othe rigbthaving aradius of 25. 00 feet and an internalangle ol90" OO` O0`^; thence along said curve 3y.27feet to the westerly &ig)atof Way of
Country Club Drivc; thence continuing along the said westerly line, the followingcourses;
S 33° 45' 28" E, 244. 80 feet to u tangent curve 0o the left having a radius 405D0 feet andan internal angle uf23, j5`2l~ thence along said curve 239. 78feet to a reverse curve tothe right 6ov& u radius of345. 0OOuo and unbdocuu angle o[ l3° l2` 18''; 8 mom: along
said ~ e 79. 51 feet to the most northerly comer ofLot 1, Country Club EstatesSubdivision No. 8 Uni " B", filed for record in Book 261 of Maps, pages 38 through 44,
Sonoma County Rec rds; thence eontinuing along the northwesterly boundary andprolongation of the northwesterly boundary line of said Country Club Estates SubdivisionNo. 8 Unit ^B̂'`, 8 56" 14^32" TY, 244.91 feet to a point on the north westerly line of Lot1, Mountain Shadows Subdivision Unit HI, fi\udfor record in Book 294o[ Maps, pagesl9dzuouub2l, Sono . 0 County I ucon1x; Uzuncealong the uudbcuetedyboenf said Lotl, yJ33"~ 5` 28" W, 30.31 to the northeast corner of said Lot 1; thence along the mostnorth easterly side nfParcel Two described above, N33" 45` 28" W, 53O. O0 feet tuthepoint nfho u u' ng. Containing 2. 07 acres.
Sonoma County Assessor Parcel Number 143- 280- 045
EXBnBITA — xealrmpmrtyDm^ripUoo
Page 9o[ ll
Together with:
Parcels ° z\',^ B",` C' and ' D' uushown on the final map of Mountain ShadowsSubdivisions Unit 1 filed in Book 257 of Maps at Pages 16 through 20, Sonoma CountyRecords; Parcel " A" as shown on the final map of' Colenian Vailay Subffivision No. 1filed iu Book 268oC1VIuyuut Pages 12 through 15, Sonoina COUU( y Records; and i' arce! sE", ^ P"&" G" am shown oo the final map of Mountain Shadows Subdivision Unit l,
filed for record in Book I57of Maps, pages 16 20, Soiiorna County Records.
Sonoma County Assessor Parcel Numbers l60' O40- 0j4, 055' 056, 160- 05O- 049, l60- 070- 005 & 160- 050- 050, 051 & 052
Prepared by Richard F. Pedroncelli, EnEngineering Technician 11 under the supervision of;
Joseph G. Gaffney, City EngineerCity of Rme^`^=~ _
A9
8
No. 3167
OF CO
EXHIBIT A — Real Property DescriptionPage 10 of 11
LIST OF DEEDS EFFECTINGGOLF COURSE LANDS
May 29, 2001
Deed File No. Description
180 Pacific Gas and Electric easement, effects Parcel Two of NorthCourse
192 Sonoma County Water Agency easement, effects westerly 25-feetof South Course adjacent to railroad tracks
195 The Pacific Telephone and Telegraph Company easement, effectsa 10- foot strip of land near the westerly boundary of the SouthCourse and parallel to the railroad tracks
292 Pacific Gas and Electric easement, effects an area adjacent to andon the westerly side of the Double Tree Hotel ( Red Lion Inn)
173 Pacific Gas and Electric easements, traverses around the SouthCourse to serve electricity to facilities on the Course
173 Jim Decker and Jeri Decker easement, access easement effecting24- feet adjacent and parallel to the northwesterly line of the SouthCourse
Documents on file in the City of Rohnert Park, City Engineers Office,
EXHIBIT A — Real Property DescriptionPage 11 of 11
UST PLANS SilOWiNG
MPROVENENTs ON OR EFFE7ICTINGGOLF COURSE LANDS
May 29, 2001
Plan File No. Description
212R Mountain Shadows Golf Course, Final Route Plan and AutomaticIrrigation System As Built Plans, 4 sheets
306 Rohnert Park Red Lion Inn Convention Center, Improvements inand around the North Course near the Hotel, full set of Plans
180 Well Nos. 17 and 18, effecting the North Course near City wellsites, full set of Plans
385 Golf Course Plaza, effecting the North Course near 1st Tee area, Sheet C- 2 of 2 & 1 of 2,
472 Visitor 'Center and Tasting Room Sonoma County Wine Assoc., effecting the North Course near 1stfairway, Sheet 2 of 2
378 Santa Rosa Subregional Water Pollution Control Facility, effectingboth courses showing transmission pipelines of Reclaimed
Wastewater, full set of Plans
182 Mountain Shadows Golf Course Improvement Plans, Site Plans forthe Club House, parking lot and associated improvements, full set , of Plans
Current Map City Water, Sanitary Sewer and Storm Drain utility base maps
Documents on file in the City of Rohnert Park, City Engineers Office.
All
1•.-
N „:".,,',:.,,,,,•°. :
k. •:.:. L._ _ i ',:.: . ; :
J
MaintenanceCreditArea Approximately = 6.
1
acres0)
0L1—
0CO i
00rsi
EXHIBIT C
GOLF COURSE OPERATIONS SPECIFICATIONS
I. GOLF OPERATIONS SCOPE OF WORK
The work covered by these Golf Operations Specifications consists of providing labor; services; materials; supplies; golf carts; selecting golf shop furniture, fixtures,
equipment, and inventory for sale; and other items as may be required to support theoperation of a quality, municipal golf course, golf shop, and practice facility. Servicesaccording to these specifications shall commence at a time necessary for the Tenant toadequately prepare for the start of revenue producing operations and will continue untiltermination of the Lease between the golf operations Tenant and the City.
Prior to commencement of operations, the City and the Tenant will identify anyadditional items required to provide service as anticipated and shall determine on aequitable basis, the financial responsibility for procurement of these items.
I1. AGREEMENT TERMS
A. Golf Operations as specified herein are part of Foxtail Golf Course Lease the Cityand the Tenant.
B. The Tenant shall be responsible for orderly care, safety, security, maintenanceand timely repair of all property which constitutes the golf operation according toapplicable laws, permits, licenses and regulations.
C. The City reserves the right from time to time as conditions warrant to hire outsidegolf course operations consultants to inspect the golf course and Tenant agreesto carry out reasonable recommendations of the City made as a result of theinspection( s).
III. PERSONNEL & SUPERVISION
A. Golf operations as identified herein will be conducted under the direct supervisionof Tenant.
B. The Tenant will be responsible to hire, train, manage and compensate the
necessary personnel for performance of the work according to these
specifications and other terms contained in the agreement documents. Staffingplan must include a Professional Golf Manager who is onsite a minimum of 40hours per week and provide for a minimum of two staff people on duty during proshop operating hours.
C. The Tenant will provide uniforms for all staff in both a customer service andmaintenance role to ensure identification and high standards of customer service.
IRV # 4817 -4429 -6207 v10
IV. HOURS OF OPERATION
A. Tenant, with the advice and consent of the City, shall determine reasonablehours for public access to services. With the exception of starting time
reservation services and Tenant's support for special events, access to golf
services, as a minimum, shall be provided between the hours of dawn and duskeach day except as precluded by weather conditions
B. Any changes in the schedule of hours for golf operation previously agreed shallbe subject to approval by the City.
C. The golf course will be open every of the year, weather permitting, except forChristmas Day, which may be closed at the discretion of Tenant.
D. In the event play and /or use must be temporarily suspended on the golf coursedue to inclement weather conditions, the decision on when to allow use and /orplay to resume will be made by the Tenant.
V. CLUBHOUSE / PRO SHOP
A. Preparation and Appearance
1. The Tenant shall be responsible for the maintenance, cleaning, repair andgeneral appearance of the clubhouse /pro shop ( including the food andbeverage portion), cart storage, maintenance building and golf shop.
2. All supplies, cleaning equipment and materials and paper goods shall beprovided by the Tenant.
3. Cleaning and preparation shall be scheduled not to impact businessoperations.
4. Maintenance and repairs shall be conducted on a timely basis withminimal impact on business operations.
Other Common Space
1. Tenant shall establish a quality standard and schedule and overseeperformance of its employees or subtenants to:
a. Vacuum carpets and clean as needed.
b. Clean any provided exterior ashtrays daily. No smoking will bepermitted within the clubhouse /pro shop
c. Empty waste baskets and clean daily.
d. Sweep all building entrances daily.
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e. Dispose of all waste daily.
f. Dust all desks, counters, chairs, file cabinets, tables and shelves
daily.
g. Clean baseboards weekly.
h. Clean window glass in the doors inside and out as often as needed.
Clean all windows inside and outside monthly or more often asneeded.
Replace defective lamps in light fixtures as soon as possible after
discovery.
Merchandise Quality /Quantity
1. Tenant shall provide and maintain such inventory of golf merchandise asis deemed necessary by mutual consent of the Tenant and the City.
2. Tenant shall provide all fixtures necessary for the display and sale ofmerchandise.
3. The Tenant shall offer for sale only goods of premium quality consistentwith the quality of goods sold at equivalent daily fee golf courses.
4. Inventory shall include at a minimum: clothing for men and women; equipment including, balls, gloves, tees, etc.
5. Tenant shall not offer for sale or rental any item of merchandise which theCity deems objectionable or beyond the scope of the agreement.
Pricing
1. Prices for all items for sale shall be marked or displayed.
VI. GOLF AND OTHER SERVICES
A. Required Operating Responsibilities
The Tenant will be responsible for providing all golf services at the Courseincluding, at a minimum, the following services and activities:
1. Provide and supervise staff to operate and manage the Course Pro Shopfrom sunrise to sunset, 7 days a week, except for Christmas day.
2. Provide and maintain an inventory of merchandise for sale in the ProShop.
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3, Provide and manage golf cart ( electric or pull cart) and equipment rentals,
4. Check -in golfers and regulate and control play, including the enforcementof Course rules and regulations.
5. Supervise and control the starting time and reservation system.
6. Collect and deposit daily all revenues, including, but not limited to, moniesfrom green fees, merchandise sales, cart and equipment rentals, lessons, tournaments, gift certificate sales, resident and multi -play cards, and
membership programs.
7. Provide quality golf lessons and instruction for all levels of play.
8. Promote golf and golf related activities in cooperation with existing golfclubs, organizations and the City of Rohnert Park.
9. Schedule and facilitate golf tournaments, clinics and junior golf
promotions.
10. Work cooperatively and collaboratively with maintenance, food and
beverage and City management staff to provide a positive golf experiencefor all users.
B. Reservations
1. The Tenant shall not discriminate in any way in the scheduling of startingtimes.
2. The Tenant shall provide maximum access to the starting time reservationsystem with service available as the season and demand dictates.
3. Golfers shall have timely, consistent access to the reservation system.
4. Group and tournament events shall be handled by qualified, experiencedpersonnel.
C. Starter /Player Assistants
1. The Tenant shall provide a Starter and a plan for the starter to monitorplay and provide a quality experience as players begin each round of golf. Pace of play objectives shall be established by the Tenant, approved bythe City and communicated to players before they begin each round ofgolf.
2. Any special requirements for group /tournament play will be established bythe Tenant, conveyed when reservations are booked and communicatedby golf operations staff as groups are checked in.
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The Tenant shall provide all complimentary, necessary and consumable
golf supplies including scoring pencils and " logo" scorecards.
D. Rentals
1. The Tenant shall provide and maintain for rental an inventory of quality, recognized brand golf clubs ( and cloth or vinyl bags) sufficient to meetplayer's demands.
2. The Tenant shall provide and maintain for rental a supply of pull cartssufficient to meet player's demands.
3. The Tenant will provide, at Tenant's sole cost, sufficient electrically -
powered golf carts. Tenant will maintain an adequate number of this
supply in a clean, fully - charged manner sufficient to meet player'sdemand.
E. Practice Areas
1, The Tenant shall be responsible for the quality operation of the practicefacilities providing and maintaining a sufficient number of artificial hittingmats, grass tees, putting green(s), sand and turf surfaces for the proper
teaching and practice of all phases of the game.
2. The Tenant shall be responsible for maintaining a high quality andsufficient quantity of all elements used at the practice facilities includingballs, hitting surfaces, landing area, cups and flags
Lessons
1. The Tenant shall provide golf lessons and training by qualified instructors.
2. The Tenant shall have submitted in its proposal and shall implement agroup and individual lesson plan to provide for the teaching and trainingneeds of golfers of differing skill levels, ages, sexes and economic
situations.
The City expects the Tenant to conduct programs to promote participationin the game of golf and the use of all the golf services.
G. Group Tournament Services
1. The Tenant shall provide group event and tournament scheduling serviceswithout discrimination.
2. The Tenant shall promote the use of all other fee services and sale ofgoods.
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3. The Tenant shall implement systems and procedures to allow effectivefuture management of the course and its related support facilities andresources.
4, The Tenant shall provide for reservation of tournament dates up to two ( 2) years in advance, preparation of reservation agreements, processing andfinancial control of deposits and payments, arrangement for tournamentassistance, checking in of players, cart assignment, and collection of
green fees and other fees associated with tournament play and supportservices.
H Golf Green Fees
1. Fees and Charges
A. Tenant shall keep current a comprehensive schedule of fees forgolf play and cart rentals. Standard fees shall be displayed.
Establishing of Fees
A. Tenant shall conduct an annual, comprehensive survey of green
fee and rental rates at comparable golf courses within the marketarea as described in Exhibit E.
VIII. SERVICE GUIDELINES
A. Tenant shall offer services consistent with the scope and quality of servicesoffered at equivalent daily fee golf courses in the area.
B Tenant shall not offer services which the City deems objectionable or beyond thescope of the agreement.
C. Tenant shall post all fees except those fees, which may be negotiated forgroup /tournament activity or other special uses.
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EXHIBIT D
GOLF COURSE MAINTENANCE SPECIFICATIONS
1. 0 GENERAL REQUIREMENTS
The Tenant shall furnish all labor, equipment, materials, tools, services and specialskills required to perform the landscape and other maintenance as set forth in thesespecifications and in keeping with the highest standards of quality and performance.
Note: Any and all references to the role or duties of Golf Services Manager ( GSM) herein shall be deemed to be the representative of the City for golf course matters; however, any references to the GSM shall also mean, and will be the duties and
responsibilities of, the Tenant in all obligations to maintain the golf course inconformance to the specifications outlined.
1. 0. 1 Maintenance Standards
The following standards are further reinforced in the maintenance specifications thatfollow and are included here in order to acquaint the Tenant with the City' s generalexpectations:
Greens /Collars
1. Mow greens at proper height according to seasonal conditions. 2. Pin placement shall be in healthy turf area according to rotation plan. 3. No standing water or severe turf loss areas. 4. Greens should be consistent on a daily basis utilizing a stimp meter within
a one ( 1) foot range from green with lowest speed to green with highestspeed.
5. Weed free and disease free. 6. Bare and stressed areas sodded or plugged.
7. Pest and vandal damage repaired.
8. No foreign grass encroachment from collars. 9. Hole plugs set at proper grade.
10. Ball marks repaired.
Fairways
1. Fairways mowed at proper height according to seasonal conditions. 2. No standing water or mud holes. 3. Yardage markers in place and maintained.
4. Cart traffic management devices in place; bare or stressed areas properlyaddressed.
5. Weed free and disease free. 6. Pest and vandal damage repaired. 7. Ground under repair painted with appropriate white turf paint and roped off
neatly and consistently throughout the golf courses. Ground under repair
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Tees
includes those under repair by the Tenant and those areas where turf is ata level that is not consistent with other associated turf areas.
1, Mow at proper height according to seasonal conditions. 2. Tee markers placed in healthy areas with tee markers set flat to ground
and direction of play. 3. Sand and seed buckets filled and properly placed by tee markers. 4, All tee station equipment cleaned and painted. Ball washer operational. 5. No standing water or mud holes. 6, Weed free and disease free. 7. Pest and vandal damage repaired. 8. Bare areas sodded and leveled.
Roughs
1, Mowed at proper height according to seasonal needs. 2. No standing water or mud holes. 3. Pest and vandal damage repaired.
4. Hazards properly marked. 5. Free of debris that affects play.
6. Ground under repair painted with appropriate white turf paint and roped offneatly and consistently throughout the golf courses. Ground under repairincludes those under repair by the Tenant and those areas where turf is ata level that is not consistent with other associated turf areas.
Bunkers
1. Edged as required, by seasonal conditions. 2. Raked — sand not compacted.
3. Proper level of sand.
4. Two to Five operational rakes per bunker, depending on bunker size. 5. Rakes properly maintained. 6. Rakes placed tines down, distributed evenly around the respective
bunkers.
7. Bunkers should have 1" lip on lower side. 8. No excess sand buildup on high side. 9. No animal boroughs.
10. No standing water.
Parking Lot
1. Lights operational.
2. Free of debris, litter, leaves, and trimmings.
3. Properly marked and signs in place. 4. Parking lines visible and weed free.
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Golf Course Restrooms
1. Must be clean and stocked daily. 2. Operational and odor free.
3. No graffiti.
4. Lights operational.
5, No worn spots.
6. Lockable partitions
Cart Paths
1. Edged and clean.
2. Weed free.
3. No standing water.
Irrigation
1. Properly maintained and adjusted. 2. Proper coverage.
3. No evidence of broken lines. 4. No missing or broken valve box lids. 5, All valve boxes visible.
6. Controllers must be locked.
7, Heads, valves and quick couplers are leak free. 8. Irrigation computer information properly kept. 9. Irrigation controller information properly kept.
Equipment
1. Serviced by golf personnel at manufacturer's intervals with proper records. 2. Tenant equipment repaired to meet demands of golf maintenance
requirements.
3. Tenant's equipment to include all Tenant safety features. 4. Equipment is kept clean.
5. All equipment maintenance and replacement is the responsibility ofTenant.
Clubhouse -- (Exterior) — Parking Lot
1. Walkways level and clean of debris. 2, All surfaces covered properly with paint where appropriate. 3. Exterior lighting working and scheduled properly. 4. All signage accurate and readable.
5. Shrub beds maintained according to specifications. 6. Annual flowers in place and healthy. 7. Missing plants replaced in kind.
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Trees
Lakes
1. No dead trees or terminally diseased trees. 2. Trees trimmed, as needed.
3. Properly staked — remove stakes within first year if applicable.
4. Mowed around.
5, Kept in healthy condition. 6. Action plan for dead and diseased trees.
1. Algae not present.
2. Litter /debris controlled.
3. Lakes at proper level.
4. Properly marked as water hazard. 5. Undesirable water plants not present.
6. Water clear.
Periphery /Shrub Beds
1. Properly mowed. 2. Free of litter /debris.
3. Mulch in proper areas.
4. Weed free.
5. Properly trimmed. 6. Water properly — not overly dry or wet. 7. Flowers changed by schedule or as needed. 8, No dead or diseased plants.
9. Maintained according to specifications
Maintenance Facilities
1. Cleaned regularly. 2. Maintained properly. 3. All regulations for proper storage and disposal of materials are adhered to.
Signage
1. Replace or add, as needed.
2, Proper placement is evident.
3. Clean and readable.
Fence /Nets
1. Repair or replace as needed,
2. In place with no holes.
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1. 1 SAFETY
1. 1. 1 Tenant agrees to perform all work outlined in these specifications in such a
manner as to meet all accepted standards for safe practices during the
maintenance and operation and to safely maintain equipment, machines, andmaterials or other hazards consequential or related to the work; and agrees
additionally to accept the sole responsibility for complying with all local, County, State or other legal requirements, including, but not limited to, full compliance
with the terms of the applicable O. S. H. A. and CAL. O. S. H. A. Safety Orders, and
at all times, protecting all persons, including Tenant' s employees, vendors,
members of the public or others from foreseeable injury, or damage to theirproperty. Tenant shall identify and inspect all potential hazards at said areasunder maintenance and keep a log indicating date inspected and action taken.
1. 1. 2 Tenant shall ensure all required certifications and training methods are adheredto and current.
1. 1. 3 When performing work, the Tenant shall make every effort to keep sidewalks, vehicle travel lanes and driveways open at all times, and honor golf etiquette byperforming maintenance tasks within acceptable golf play conditions.
1. 1. 4 It shall be the Tenant's responsibility to inspect and identify, any condition( s) thatrenders any portion of the areas under maintenance unsafe, as well as any
unsafe practices occurring thereon. The Tenant shall be responsible for making
corrections, including but not limited to filling holes and replacing valve boxcovers so as to protect golfers and other members of the public from injury. The
Tenant shall cooperate fully with the City in the investigation of any accidentalinjury or death by the public, Tenant, or any other entity, occurring in the
contracted areas, including a complete written report thereof to the GSM withintwenty -four (24) hours following the occurrence.
1. 2 PROTECTION OF PROPERTY
1. 2. 1 During Periods of Inclement Weather:
The Tenant will provide supervisory inspection of the golf course during regularhours to prevent or minimize possible damage.
The Tenant shall submit a report identifying any storm damage to the GSMattached to a site map identifying location of damage.
The Tenant's workforce shall continue to accomplish work not affected by suchweather, i. e. clean -up and facility maintenance, as well as work caused by theinclement weather.
1. 2. 2 The Tenant shall exercise due care during the performance of work in protectingfrom damage all existing facilities, structures and utilities both above surface andunderground on the City' s property. Any damage to City property deemed to be
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caused by the Tenant' s neglect shall be corrected and paid for by the Tenant atno cost to the City.
1. 2. 3 If the City requests or directs the Tenant to perform work in a given area, it willbe the Tenant' s responsibility to verify and locate any underground utility
systems and for taking reasonable precaution when working in these areas. Anydamage or problems shall be reported immediately to the GSM.
1. 3 PESTICIDES
General:
All materials used shall be in strict accordance with and applied within the standards setforth in the EPA regulations and the California Department of Food and AgriculturalCode.
Tenant is responsible for obtaining all required permits and maintaining the requiredusage documentation and to comply with all requests from the Sam Mateo CountyAgricultural Department to inspect records, licenses, training certificates, equipment andstorage facilities. All applicable regulations shall be strictly adhered to, and all required
reporting shall be the responsibility of Tenant.
Application of Pesticides:
1. 3. 1 Timing:
Pesticides shall be applied at times that limit the possibility of contamination fromclimatic and other factors. Early morning or evening application shall be usedwhen possible to avoid contamination from drift. If applicable, drift control skirted
booms must be used when golfers are present if applicable. Small backpack
applications may be performed based on weather protection and with provisionsmade for the safety of golfers. Applicator shall monitor forecast weather
conditions to avoid making application prior to inclement weather to eliminatepotential runoff of treated areas. Irrigation water applied after treatment shall be
reduced to eliminate runoff. When water is required to increase pesticide
efficiency, it shall be applied only in quantities per the label requirements and ofwhich each area is capable of receiving without excessive runoff.
1. 3. 2 Handling of Pesticides:
Care shall be taken in transferring and mixing pesticides to prevent
contaminating areas outside the target area. Application methods shall be used
which ensure that materials are confined to the target area. Spray tanks
containing leftover materials shall not be drained on the site to preventcontamination. Disposal of pesticides and tank rinsing materials shall be withinthe guidelines established in the California Department of Food and AgriculturalCode or EPA regulations.
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1. 3. 3 Equipment and Methods:
Spray equipment shall be in good operating condition, quality, and design toefficiently apply material to the target area. Avoiding high pressure applicationsand using water soluble drift agents will minimize drift.
1. 3. 4 Recommendations:
All pesticide applications shall be in accordance with written recommendationsprovided by a licensed Pest Control Advisor ( PCA) with copies of the writtenrecommendations sent to the GSM. A licensed Qualified Applicator ( QAC) shall
be on site during application.
1. 3. 5 Selection of Materials:
Pesticides shall be selected from those approved for golf course use byCalifornia Department of Food and Agriculture.
1. 4 SOUND CONTROL REQUIREMENTS
1. 4. 1 The Tenant shall comply with all local sound control and noise level rules, regulations and ordinances, which apply to any work performed pursuant to thecontract.
1. 4. 2 Each internal combustion engine used for any purpose on the job or related to thejob shall be equipped with a muffler of a type recommended by the manufacturerof such equipment. No internal combustion engine shall be operated on theproject without said muffler.
1. 5 CONSTRUCTION EQUIPMENT
The Tenant shall take all necessary precautions for safe operation of equipmentand the protection of the public from injury and damage from such equipment.
1. 6 INQUIRIES AND COMPLAINTS
1. 6. 1 The Tenant shall have designated responsible management personnel totake the necessary action regarding all inquiries and complaints that maybe received from or through the City and /or private citizens during normalwork hours.
1. 6. 2 Whenever immediate action is required to prevent impending injury, death
or property damage to the facilities being maintained, City may, after
reasonable attempt to notify the Tenant, cause such action to be taken bythe City work force and shall charge the full cost thereof to the Tenant.
1. 6. 3 All complaints shall be abated as soon as possible after notification to thesatisfaction of the City. If any complaint is not abated within a reasonable
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time, the City shall be notified immediately of the reason for not abatingthe complaint, followed by a written report to the GSM within three ( 3)
days.
1. 7 MAINTENANCE EMPLOYEES /UNIFORMS /VEHICLES
1. 7. 1 Employees:
A designated full -time Class " A" Superintendent and Mechanic must be assigned fulltime at the golf course. Also, a supervisor who is fully trained in all maintenanceresponsibilities must be on- site at all times while work is being performed at the golfcourse. Tenant shall provide to City, upon commencement of agreement, all JobClassifications and Job Descriptions for duties, responsibilities and services to be
performed at golf course as described in the agreement.
All maintenance employees shall be assigned to work solely at Foxtail Golf Course andshall not have duties or responsibilities at other sites nor shall they be rotated betweenother sites maintained by the Tenant.
All maintenance employees shall present a neat, well - groomed appearance at all times.
Employees shall act in a courteous, professional manner at all times. Every effort shall
be made to perform the work while creating minimum disturbance to the golfers. Any
employee who is determined by the GSM to be incompetent, disorderly, intemperate orotherwise objectionable shall be immediately removed from the crew and replaced witha satisfactory replacement.
1. 7. 2 Uniforms:
The Tenant shall pay for and bear the maintenance cost of uniforms for all employeesworking on the golf course.
The uniform shall be worn as a complete unit and be fitted properly. The uniform shall
be cleaned and pressed with no rips, tears or permanent stains present.
In cool weather when a jacket or sweatshirt is needed, the jacket or sweatshirt shall beworn as the outer garment. All shirts and jackets shall have the golf course logo andthe worker's first name on them.
Protective golf staff equipment shall be determined by Tenant when working on the golfcourse. When working elsewhere at the facility, but not within the actual field of play, acotton uniform cap with either of the golf course logos may be worn, but must be wornwith the bill facing forward at all times. Non golf course logo cap is not permissible.
1. 7. 3 Vehicles:
All vehicles used on the course shall be maintained in good mechanical and bodyrepair. The vehicles shall be clean both inside and out at all times. The vehicles driven
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on public roadways shall bear the Tenant' s company name, which is visible on bothsides of the vehicles.
Each vehicle shall be equipped to hold all tools and equipment in a neat and orderlyfashion.
2. 0 SPECIFIC REQUIREMENTS
2. 1 Tenant shall notify the City prior to use of a sub Tenant on the premise. All sub
Tenants shall have appropriate insurance and safety requirements and shall betrained in golf course etiquette procedures prior to any work being performed.
2. 2 All golf course related plans are property of city and use is restricted to Site. Tenant shall make copies as required to ensure the original set of plans remainsin good condition.
2. 1 MAINTENANCE RECORDS
2. 2. 1 The Tenant shall provide the GSM with a written schedule of the work to beperformed during the following month which includes, but is not limited to:
general golf course maintenance, aerification, tree trimming, lake maintenance, herbicide /insecticide application, fertilization and replacement of color plants. The report shall be provided in a format developed by Tenant and City andapproved by the GSM. If the Tenant finds that it is not possible to maintain thesubmitted schedule, the GSM shall be advised and a revised schedule
submitted.
2. 1. 2 The Tenant shall maintain and keep current a log that records all on- going, seasonal and additional work, and maintenance functions performed on a dailybasis by Tenant' s personnel. Said report shall be in a form and content
acceptable to the GSM.
2. 2 TREES
2. 2. 1 All tree trimmings shall be performed on a schedule approved by the GSM and inaccordance with the tree, shrub and other wood plan maintenance pruning
practices outlined by the American National Standards Institute, Inc. ( ANSI).
However, such trimming and pruning is a minimum level and shall not relieveTenant of other responsibilities set forth herein.
2. 2. 2 Trees shall be pruned as required to remove broken or diseased branches. The
Tenant shall develop a pruning program, which will promote proper tree
scaffolding, strength, and appearance consistent with its intended use. Tenant
shall prune trees to allow wind to pass through the tree, reducing and preventinga " sail" effect.
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2. 2. 3 Trees located adjacent to vehicular and /or pedestrian traffic ways shall be
maintained so as not to obstruct vehicle and /or pedestrian visibility and
clearance.
2. 2.4 Fertilization shall be scheduled as often as required to keep trees in a healthyand desirable condition as outlined in the pruning specifications. Avoid applying
fertilizer to root ball or base of main stem; instead, spread evenly in area of dripzone.
2. 2. 5 Tree stakes, ties, and guys shall be checked and corrected as needed. Ties will
be adjusted to prevent girdling. Remove unneeded stakes, ties, and guys as
required. Re -stake trees, as required, using lodge pole stakes.
2. 2. 6 Prune trees along sidewalks and cart paths to allow ten ( 10) foot clearance forpedestrians.
2. 2. 7 Ailing or stunted trees, which fail to meet expected growth will receive additionalnutrient treatments to correct any deficiencies.
2. 2. 8 Surface roots, which become maintenance or appearance problems, will be
removed or additional soil and sod cover shall be placed as required to preventdamage to adjacent areas, mowers and golf carts.
2. 2. 9 Any tree requiring removal, at no fault of Tenant, shall be replaced by the
Tenant, at City expense, with prior GSM approval.
2. 3 SHRUBS
2. 3. 1 Prune shrubs to retain as much of the natural informal appearance as possible.
2. 3. 2 Shrubs used as formal hedges or screens shall be pruned as required to presenta neat, uniform appearance.
2. 3. 3 Remove any spent blossoms or dead flower stocks as required to present a neat, clean appearance.
2. 3. 4 Plants growing over curbing and /or sidewalks shall be trimmed on a natural taperrather than vertical so as not to appear to be hedged.
2. 3. 5 Schedule the application of a commercial fertilizer as often as required topromote optimum growth and healthy appearance to all shrubs.
2. 3. 6 Any plant requiring removal shall be replaced by the Tenant.
2.4 GROUND COVER — NATIVE GRASSES
2.4. 1 Apply all chemical control ( e. g. pesticides) as required to control or prevent pestinfestations to protect ornamental plantings.
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2. 4. 2 Trim ground cover adjacent to walks, walls and /or fences as required for generalcontainment to present a neat, clean appearance.
2. 4. 3 Cultivate and /or spray herbicide to remove broad - leafed and grass weeds asrequired. Shrub beds shall be maintained in a weed free condition.
2. 4. 4 Keep ground cover trimmed back from all controller units, valve boxes, quickcouplers, or other appurtenances or fixtures. Do not allow ground covers to grow
up trees, into curbs, or on structures or walls. Keep trimmed back approximately4 inches from structure or walls.
2. 4. 5 Fertilization: Schedule fertilization of all ground cover areas with a commercial
fertilizer as often as required to promote healthy appearance.
2. 4. 6 Ground cover plants shall be added, as needed, to ensure a solid mass plantingin conformance with the original intent.
2. 5 PEST CONTROL ON PLANTS
2. 5. 1 Tenant shall provide complete and continuous control and /or eradication of allplant pests or diseases.
2. 5. 2 Tenant shall supply the proper chemical designated for the pests to becontrolled.
2. 5. 3 Tenant shall obtain all necessary regulatory permits and assume responsibility
for the use of all chemical controls.
2. 6 IRRIGATION SYSTEM
2. 6. 1 Efficient Use of Water:
2. 6. 1. 1Considerations must be given to soil texture, structure, porosity, water holdingcapacity, drainage, compaction, precipitation rate, run off, infiltration rate,
percolation rate, evapotranspiration, seasonal temperatures, prevailing wind
condition, time of day or night, type of grass, plant and root structure. This may
include syringing during the day and watering during periods of windy weather.
2. 6. 1. 2 Tenant shall be responsible for daily monitoring all systems within Site andcorrecting for: coverage, adjustment, clogging of lines and sprinkler heads, removal of obstacles, including plant materials, which obstruct the spray.
2. 6. 1. 3 The soil moisture content on greens, tees and fairways shall be checkedregularly and appropriate adjustments made. Adequate soil moisture shall be
determined by visual observation, plant resiliency, and turgidity, examining coresremoved by soil probe, moisture sensing devices and programming irrigationcontrollers accordingly.
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2. 6. 1. 4 Tenant shall observe and note deficiencies occurring from the originaldesign of facilities and review these findings with the GSM so necessaryimprovements can be considered.
2. 6. 1. 5 All leaking or defective valves, lines and sprinkler heads shall be repairedwithin twenty -four ( 24) hours at the expense of the Tenant. A report of such
repairs shall be given to the GSM weekly.
2. 6. 1. 6 Tenant shall turn off all controllers when it is not necessary to irrigate dueto adequate rainfall.
2. 6. 2 System Maintenance
Tenant is aware of the current state of the golf course irrigation system, and accepts fullresponsibility for the repair and maintenance of the system as is. Any requiredreplacements, repairs, and maintenance to existing components of the system toensure the system remains in operation are the sole responsibility of the Tenant. Appropriate personnel shall be trained in the use of the master irrigation computer.
2. 6. 2. 1 All controllers are to be kept pest -free and all parts and repairs necessary tomaintain the operation are the responsibility of the Tenant.
2. 6. 2. 2 Any repairs made by the Tenant shall be made in accordance with the industrystandards and conforming to all related codes and regulations.
2. 6. 2. 3 Tenant shall be responsible for adjusting the height of sprinkler risersnecessary to compensate for growth of plant materials.
2. 6. 2. 4 Sprinkler heads and valve boxes shall be kept clear of overgrowth which mayobstruct maximum operation.
2. 6. 2. 5 Repairs and /or upgrades made to the irrigation system must be made inaccordance with the system' s original design with products equal to or higherquality than currently provided.
2. 6. 2. 6 All irrigation repairs and maintenance, including but not limited to, sprinklerheads, piping, fittings, valves, controller boxes, controller supplies, and
controller face plates, must be performed utilizing the same manufacturer andtype of product as existing materials. Any change to existing materials musthave prior approval by the GSM.
2. 7 ANIMAL AND RODENT CONTROL
Tenant shall continuously, at a minimum on a weekly basis, control and eradicate
rodents and other animal pests as necessary to prevent hazards, holes and destructionof plantings on golf course property. Damage to public or private property due to
erosion as a result of rodent activity shall be repaired at the Tenant' s expense.
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2. 8 WEED CONTROL OF PAVED SURFACES
Tenant shall control all weeds growing in cracks, expansion joints and other hardsurfaces by the use of chemical or mechanical weed control.
2. 9 WEED CONTROL IN LANDSCAPE AREAS
Weed control in landscaped areas shall be accomplished by mulching and the use ofboth pre- emergent and post - emergent herbicides. Mechanical weed eradication is
unacceptable unless approved by the GSM.
2. 10 STRING TRIMMERS
Care shall be exercised with regard to the use of string trimmers to prevent damage tobuilding surfaces, walls, header board, light fixtures, signage, etc. A minimum of 12"
bare soil or mulched buffer zone shall be maintained around the circumference at thebase of all trees in landscaped areas.
2. 11 GREENS
Maintain all turf in accordance with playability and industry wide standards asdetermined by the GSM, observing the following minimum requirements:
2. 11. 1 Greens shall be mowed as needed with an approved greens reel type mower ata height of 5/ 32 ", or as recommended by the Tenant and approved by theGSM. Frequencies and height of cut may be modified from time to time asdeemed necessary by the golf course Tenant with the prior approval of theGSM. All grass clippings must be collected and removed from the site duringeach mowing operation, including dispersed in a method to prevent unplayableconditions. Greens must be mowed, and rolled if performed, prior to first golferof day reaching each respective green, including the putting green. Care will begiven on clean up lap mowing to reduce turf loss and playability.
2. 11. 2 Ball cups are to be relocated daily to USGA Standards to enable worn turfspots to recover. Putting and chipping green cups to be changed weekly. Hole
positions will be rotated using front, middle, and back locations for each threehole sequence.
2. 11. 3 Verticutting of greens shall be scheduled bi- weekly or more, including doubleverticutting, during periods of active turf growth. Each verticutting shall be at 90degrees to the previous cut. Verticutting activities should match the agronomicrequirements of plant growth. This function shall be coordinated to compliment
the aerification and topdressing schedules. Combing or brushing may also bedone. Verticut depth should be appropriate to playing conditions andagronomic needs. If play conditions are such that greens are not smooth forball roll ( bumpy), Tenant shall utilize verticutting and other agronomic methodsto improve golf ball roll.
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2. 11. 4 Aerify greens at least two ( 2) times per year, in April and August, or more
frequently if needed, and remove plugs the same day. Aerification shall be
carried out with a minimum of interference to play. Aerification shall be
scheduled in November of each year for the following year in conjunction withthe GSM and golf professional. All aerification hole sizes, with a minimum of
5/ 8 inch hollow tine utilized, and spoil locations shall be pre- approved by theGSM. Aerification holes shall penetrate to a depth of three inches. Care should
be taken to have as minimal disturbance to green surface from manual andequipment applications during aerification process. Aerification of greens for
agronomic purposes, other than annual regularly scheduled aerifications, shallbe reviewed and scheduled with the golf professional to reduce golfer impact.
2. 11. 5 Following all annual regularly scheduled aerifications, a topdressing sand
material approved by the GSM shall be applied and brushed into the turf, withfollow applications performed as needed. Application shall be done with an
approved topdressing spreader. Spot topdressing may be applied to repairdamage from ball marks or any other damage. Light topdressing will be doneevery two weeks during the active growth season to maintain turf playabilityand agronomic conditions. Turf irrigation requirements shall be adjusted duringprocess to ensure proper agronomic conditions are met.
2. 11. 6 Tenant shall have the soil analyzed after the start of the term of the contractand twice every year thereafter, on dates pre approved by GSM. Apply
fertilizer and nutrients in the quantity and type recommended by soil analysisand growing conditions at the time of treatment and in a manner to provideuniform growth of turf. Under normal conditions, 0. 5 to 1. 2 pounds of actual
nitrogen per thousand square feet shall be applied per growing month.
Typically, a variety of granular slow release types of material or liquid sprayablefertilizer may be utilized. Use of materials to control salt damage and waterinfiltration shall be applied to meet the requirements of the turf and playableconditions. Fertilizer shall be applied every three ( 3) weeks during the activegrowing season and every five ( 5) weeks for the remainder of the year.
2. 11. 7 Treat greens with proper chemicals to control insects, disease, weeds andother pests.
2. 11. 8 Greens shall be kept free of foreign grasses and /or broadleaf weeds that tendto creep in from the edges.
2. 11. 9 EC readings should be taken during the spring and fall to determine salts levelsand if they are above normal, corrective action taken to reduce to appropriatelevels to promote optimum health of the turf.
2. 11. 10 Green speed should be consistent daily on all greens, with the differencebetween the lowest green speed and the highest green speed no more thanone ( 1) foot in variance on the stimp meter throughout golf course. Green
speeds should be no lower than 9 feet in average daily during the months of
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May, June, July, August, September, and October, and no lower than 9 feet 6inches daily for the other months. Green speeds should be maintained as high
as agronomic conditions and play conditions allow.
2. 11. 11 Debris from trees shall be cleaned prior to mowing and during day as needed toensure quality playing conditions.
2. 11. 12 Ball marks shall be repaired daily.
2. 12 COLLARS, APPROACH, BANKS AND GREEN SURROUNDS
Maintain all turf in accordance with playability and industry wide standards as
determined by the GSM observing the following minimum requirements:
2. 12. 1 Collars shall be mowed a minimum of two ( 2) times each week to maintain a
height of 1/ 2 inch, mowing with a triplex mower
2. 12. 2 Green surrounds shall be mowed a minimum of ( 1) time each week to maintaina height of one ( 1) to 1- 1/ 4 inch or a height as recommended by the Tenant andapproved by the GSM. If a rotary mower is used, it shall be specifically
designed to prevent scalping of the turf.
2. 12. 3 Fertilization frequency, types of material and analysis shall be determined fromresults of bi- annual soil nutrient level testing and growing conditions at the timeof treatment. Under normal conditions 0. 25 to 0. 75 pounds of actual nitrogen
per thousand square feet shall be applied every six ( 6) weeks during the activegrowth season and every eight ( 8) weeks for the remainder of the year.
Typically combinations of granular slow release type of materials may beutilized.
2. 12. 4 Mowing directions should be changed to prevent turf depressions and turf loss.
2. 12. 5 Approach shall be mowed a minimum of two ( 2) to three ( 3) times each weekto maintain a height of 1/ 2 inch, or a height as recommended by the Tenant andapproved by the GSM, cut with a greens type triplex mower
2. 12. 6 Grass clippings shall be removed and dispersed properly to not negativelyaffect golf play.
2. 12. 7 Bunker banks shall be mowed to ensure no rutting occurs and proper turfheights are maintained. If rutting occurs, areas shall be sodded for repair.
2. 12. 8 Verticutting shall be performed at least two ( 2) times per year. All other
provisions of section 2. 11. 3 shall be followed.
2. 12. 9 Aerify at least two ( 2) times per year, in April and August, or more frequently ifneeded, and remove plugs the same day. Aerification shall be carried out with
a minimum of interference to play. Aerification shall be scheduled in November
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of each year for the following year in conjunction with the GSM and golfprofessional. All aerification hole sizes, with a minimum of 5/ 8 inch hollow tineutilized, and spoil locations shall be pre- approved by the GSM. Aerification
holes shall penetrate to a depth of three inches. Care should be taken to have
as minimal disturbance to the turf surface from manual and equipmentapplications during aerification process. Aerification for agronomic purposes,
other than annual regularly scheduled aerifications, shall be reviewed and
scheduled with the golf professional to reduce golfer impact.
2. 12. 10 Following all annual regularly scheduled aerifications, a topdressing sand
material approved by the GSM shall be applied as needed. Application shall be
done with an approved topdressing spreader. Turf irrigation requirements shall
be adjusted during process to ensure proper agronomic conditions are met.
2. 13 TEE MAINTENANCE
Maintain all turf in accordance with playability and industry wide standards asdetermined by the GSM, observing the following minimum requirements:
2. 13. 1 Service tees daily by moving tee markers, removing trash and checkingbenches and ball washers. Change tee towels and water weekly and keep ballwashers filled to proper level with water and appropriate cleaning agent. Teemarkers shall be moved daily to healthy turf areas, placed at appropriate
direction to play.
2. 13. 2 Mow tees two ( 2) times weekly with reel type mower, with baskets, at height of1/ 2 inch or a height as recommended by the Tenant and approved by the GSM. All grass clippings will be collected and dispersed properly for playableconditions.
2. 13. 3 Aerify and topdress tees, with sand and mulch pre- approved by the GSM, atleast two ( 2) times per year, or more frequently if needed, using the appropriateequipment with the minimum of interference to play. Aerification shall be
carried out with a minimum of interference to play and plugs removed the sameday. Aerification shall be scheduled in November of each year for the followingyear in conjunction with the Golf Professional and the GSM. All aerification
hole sizes, with a minimum of 5/ 8 inch utilized, and spoil locations shall be pre - approved by the ACR. Care should be taken to have as minimal disturbance to
tee surface from manual and equipment applications during aerificationprocess.
2. 13, 4 Fertilization frequency, materials and analysis shall be determined from resultsof bi- annual soil nutrient level testing and growing conditions at the time of
treatment. Under normal conditions, 0. 25 to 0. 75 pounds of actual nitrogen per
thousand square feet shall be applied every six ( 6) weeks during the activegrowth season and every eight ( 8) weeks during the remainder of the year. Typically combinations of granular slow release type of materials may be
IRV #4817 -4425 -6207 v10
utilized.
2. 13. 5 Repair worn and damaged turf areas as they occur by topdressing, over
seeding or resodding to ensure playability at all times.
2. 13. 6 Tees shall be overseeded, with approved seed by GSM, following aerificationand before topdressing at a rate of 10. 33 lbs. per thousand square feet of teearea.
2. 13. 7 Treat tees for control of insects, disease, weeds and other pests as necessary
to maintain healthy turf.
2. 13. 8 Trash receptacles are to be emptied daily.
2. 13. 9 A sand and seed container, approved by the GSM, must be available on all Par3 holes, for use in repairing divots. A container must be set at each respective
set of tee markers for each hole. Tee divots shall be filled with sand and seedat a minimum of once per week on all holes and twice per week on par 3 holes.
2. 13. 10 Ample score card and pencil supplies shall be kept in stock at the scorecardstation between the No. 1 green and the No. 2 tee.
2. 13. 11 Tee yardage plaques, stations and signs shall be maintained and edged at alltimes.
2. 13. 12 Tee station items, such as markers, signs, trash cans, ball washers, etc. shallbe in good condition and repaired or replaced as needed.
2. 13. 13 Recycle trash containers shall be utilized and all recyclable glass and plasticbottles and aluminum cans shall be collected and turned into appropriaterecycle centers.
2. 14 FAIRWAY MAINTENANCE
Maintain all fairways in accordance with playability and industry wide standardsas determined by the GSM, observing the following minimum requirements:
2. 14. 1 Mow fairway two ( 2) times weekly at height of 3/ 4 inch or at a height asrecommended by the Tenant and approved by GSM.
2. 14. 2 Aerify all fairways at least one ( 1) time a year. The equipment used to aerifythe fairways shall be Power Take -Off (PTO) or self engine powered to enable athree ( 3) to five ( 5) inch coring depth ( Toro ProCore or equivalent) utilizing
hollow coring, with a minimum of 3/4 inch hollow tine, as recommended by theTenant and approved by the GSM and cores shall be removed from thefairways. Aerification shall be scheduled in November of each year for the
following year in conjunction with the Golf Professional and the GSM. All
aerification hole sizes and spoil locations shall be pre- approved by the GSM.
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Care should be taken to have as minimal disturbance to turf surface frommanual and equipment applications during aerification process. Slicing of thefairways at various intervals is recommended to promote turf growth, improvewater infiltration, and improve salt damage.
2. 14. 3 Over seed all fairways once per year, in the fall and at a pre- approved datewith the GSM and golf professional, with an 80/ 20 rye /blue seed mix, pre -
approved by the GSM, at a minimum rate of 450 lbs. per acre. All seed shall beslit seeded into the soil to ensure adequate soil and seed contact. A post seedapplication of fertilizer ( 15 -15 -15 or equivalent) shall be applied with four (4) weeks of the over seed process at a rate of one ( 1) lb per thousand of
nitrogen. Over seed and topdress ( or re -sod) worn or bare areas of fairways as
necessary.
2. 14.4 Treat turf to control weeds, invasive grasses ( i. e. Kukuyu), diseases, insects,
and other pests as necessary to maintain a weed free and healthy turf, and toeliminate weed infestation.
2. 14. 5 A proper fertilizing and nutrient program shall be performed per soil testingrecommendations each calendar year. Fertilization shall occur a minimum of
every six ( 6) weeks during the active growth season and every eight ( 8) weekduring the remainder of the year.
2. 14. 6 Policing to control litter shall be done on a regular basis for the removal of allpaper, leaves, cans, bottles, tree branches, etc.
2. 14.7 Excessive turf clippings shall be dispersed by a method of dragging, baskets, vacuumed or blown to ensure proper playable conditions are provided.
2. 15 ROUGHS MAINTENANCE
Maintain all turf in accordance with playability and industry wide standards asdetermined by the ACR, observing the following minimum standards:
2. 15. 1 Mow one ( 1) time per week at a height of 1 - 1/ 2 inches, or a height as
recommended by the Tenant and approved by the GSM.
2. 15. 2 Aerify all roughs at least one ( 1) time per year. The equipment used to aerifythe fairways shall be Power take off ( PTO) or self engine powered to enable athree ( 3) to five ( 5) inch coring depth ( Toro Pro Core or equivalent), utilizing
hollow tines, with a minimum 3/4 inch hollow tine, as recommended by the
Tenant and approved by the GSM. Aerification shall be scheduled in
November of each year for the following year in conjunction with the GSM andgolf professional. All aerification hole sizes and spoil locations shall be pre -
approved by the GSM. Care should be taken to have as minimal disturbance to
green surface from manual and equipment applications during aerificationprocess. Cores shall be removed from the roughs.
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2. 15. 3 Overseed and topdress (or resod) worn or bare turf areas as necessary.
2. 15. 4 Fertilization frequency, materials and analysis shall be determined from resultsof bi- annual soil nutrient level testing and growing conditions at the time oftreatment. Fertilization shall occur a minimum of every six ( 6) weeks during theactive growth season and every eight ( 8) week during the remainder of theyear.
2. 15. 5 Treat turf to control weeds, disease, insects and other pests as necessary to
maintain a healthy turf and eliminate weed infestation.
2. 16 OTHER TURF AND MAINTENANCE AREAS
These areas consist of areas not detailed above.
2. 16. 1 All debris such as litter and branches shall be removed from the course.
2. 16. 2 All yardage, course markers, ropes and stakes, and signage shall be straightand damage free, and repaired and replaced as needed.
2. 16. 3 Any item that is a safety hazard shall be repaired or replaced immediately,
2. 16.4 Tenant shall submit annually to GSM a written Integrated Pest ManagementIPM) program for the following 12 months detailing annual fertilizer, pesticide,
fungicide and other related applications for the golf course.
2. 16. 5 Tenant shall be responsible for repair and service of injection machines and
holding tanks ( if utilized by Tenant)
2. 16.6 Tenant shall utilize wood chipping machinery to produce wood chips from treepruning and care. Wood chips may be spread throughout golf course in pre - approved areas by the GSM. No permanent dumping of course debris, such asbranches, wood stumps, etc. is approved on the property. Tenant is responsiblefor costs associated with any removal of debris. Any other course generateddebris such as earthen spoils shall be dispersed at locations and with methods
pre approved by the GSM.
2. 16. 7 Turf areas surrounding the clubhouse shall be mowed one ( 1) time per week ata height of 1- 1/ 2 inches.
2. 16. 8 Tenant shall provide, at Tenants sole expense and liability, an effective goosecontrol program to eliminate goose activities, including use of control dog, motorized hand controlled boats, noise makers, and other methods.
2. 17 SAND BUNKERS
2. 17. 1 Sand bunkers shall be cleaned and raked, by mechanical method or by hand, aminimum of three ( 3) times per week.
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2. 17.2 Sand depth shall be randomly checked monthly for depth of sand and shall bemaintained no less than four inches ( 4 ") deep. Tenant shall submit written
report to City of any bunkers with less than four (4 ") inches of sand. Additional
sand may be added, at City expense, at City sole discretion.
2. 17. 3 Turf shall be mechanically edged along sand bunker edges at a minimummonthly, or more frequently if required, to ensure a neat appearance. Care
shall be taken to maintain the design outline of the bunkers to insure theintegrity of the bunker shape. Chemical control of sand edges through use of anon - selective herbicide or growth regulator around sand bunkers shall beallowed with pre- approval of GSM.
2. 17. 4 Excess sand in the turf surrounding the trap shall be removed on a regularbasis.
2. 17. 5 A minimum of two ( 2) to five ( 5) rakes are to be available, depending on bunkersize, at all sand bunkers at all times. ( Color and style subject to GSM
approval.)
2. 17. 6 Bunker sand shall be cultivated as needed, or at a minimum of once per month,
to ensure sand is not compacted. Methods should be used to not disturb
existing soil below the sand.
2. 17. 7 All debris such as pine needles and cones, branches and other debris shall beremoved as needed to ensure playable conditions and reduce sand
contamination.
2. 17. 8 Excessive water ponding and silt accumulated by rain falls and irrigationapplications shall be removed prior to bunker raking.
2. 18 CLUBHOUSE AREAS
2. 18. 1 Shrub Beds
2. 18. 1. 1 Clean up shall occur on a regular basis to ensure that beds are kept free oftrash and debris such as paper, cans and bottles, fallen branches, excessiveleaves and weeds.
2. 18. 1. 2A fertilizer program shall be a minimum of four ( 4) applications per year or asneeded for health and color.
2. 18. 1. 3 Spent flowers, leaves and other landscape debris shall be removed from plantareas daily, or as required.
2. 18. 2 Seasonal Color Beds
2. 18. 2. 1 All color beds shall be regularly cleaned of paper, bottles and cans, fallenbranches, excessive leaves and weeds.
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2. 18. 2. 2 Weed control shall be accomplished by use of pre - emergent, selective
herbicides, mulch and manual weeding. A pest control spray program shall bedone as often as necessary for pest control.
2. 18. 2. 3 Beds shall be cultivated by mechanical means on a regular basis or asrequired, or as directed by the GSM.
2. 18. 2. 4 Color plants shall be replaced a minimum of twice annually and shall beperformed on a schedule submitted to and approved by the GSM. The
replacement plants shall be 4 -inch potted size, spaced per industry standardsand planted with the appropriate soil amendments.
2. 18. 3 Periphery Areas
2. 18. 3. 1 All periphery areas shall be maintained in a manner consistent to industrystandards to ensure a healthy and aesthetically pleasing appearance at alltimes.
2. 18. 3. 2 Areas shall be mowed, weeded, cleaned of litter and other debris on a regularbasis ( a minimum of once per week). Watering should occur if the area iscovered by the irrigation system.
2. 18. 3. 3 Special attention shall be given to periphery areas adjacent to public roadwayssince these areas are highly visible to the general public and constitute a " firstimpression" of the overall service level of the course.
2. 18. 3. 4A11 areas are to be inspected for erosion problems and repaired as needed.
2. 19 PARKING LOTS
2. 19. 1 Parking lots are to be maintained in a safe condition for use by both vehiclesand pedestrians, and cleaned each day to ensure a clean, crisp appearancefree from litter and debris, including all landscaped planters on or adjacent tothe lots.
2. 19. 2 All parking lot lighting shall be repaired as needed.
2. 19. 3 " Disabled Parking" signage and other signage shall be maintained in
accordance with all State, County and local regulations.
2. 19.4 All parking lot signage shall remain in place, maintained and readable.
2. 20 GRAFFITI
2. 20. 1 Golf course shall be inspected daily for evidence of graffiti. Special attention
shall be given to restrooms, signs, markers, block walls, curbing, paving, tees, utility poles /boxes and /or any other structures of fixtures.
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2. 20. 2 All graffiti shall be eradicated within twenty -four ( 24) hours of detection.
2. 20. 3 Graffiti requiring paint over shall be painted over with a color consistent withthat of the original surface.
2.20.4 Graffiti on non- painted surfaces shall be removed by sand or water blasting andarea returned to the pre existing condition.
2. 21 COURSE ACCESSORY EQUIPMENT
All accessory equipment must be maintained in a clean, safe, functioningcondition at all times and repainted as required to present an aesthetically
pleasing appearance. Accessory equipment shall include, but not be limited tothe following:
NOTE: Must be same or equal to current types and any changes require
prior approval of the GSM.
Signage, Shoe brushes, Trash receptacles, Ash urns Greens cups, NCGA
Teemarkers, Benches, Sand rakes, Flags and poles, Ball washers, Fairwayyardage poles, and sprinkler yardage markers
2. 22 CART PATH /STEPS /RAMPS/WALKWAYS /BRIDGES
2. 22. 1 To be swept or blown clean of debris every Friday or more often as needed.
2.22.2 Concrete paths to be edged and scraped clean a minimum of one ( 1) time permonth, or as needed.
2. 22. 3 Tenant shall identify all potholes and /or other surface damage or defects to berepaired and report to City. The repair of such areas shall be the responsibility
of the City, at City sole discretion.
2. 23 RESTROOMS
2. 23. 1 Restrooms shall be cleaned and sanitized once daily using cleaning and
sanitizing agents recognized for use in public restrooms.
2. 23. 2 Maintenance shall include, but not limited to: Sweeping and mopping floor, Cleaning and sanitizing basins, metal fixtures, urinals, toilets, and trash
receptacles; Cleaning and polishing mirrors
2. 23. 3 Paper supplies shall be checked and restocked daily, or as needed.
2. 23.4 Walls, ceilings, screens and windows shall be cleaned monthly, or as needed.
2. 23. 5 Leaky or malfunctioning fixtures shall be repaired /replaced immediately upondetection.
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2. 23. 6 Lighting fixtures are to be checked daily with relamping of faulty fixturesprovided as needed at time of detection.
2. 23. 7 Restroom floors which are wet for any reason, including mopping, shall be somarked with proper temporary signage.
2. 24 CONSTRUCTION AND /OR REMODELING
Any and all changes in the physical characteristics of any portion of the coursesor structures, such as: addition or removal of sand traps, trees, water hazards, native vegetation or other features shall require prior approval by the GSM.
3. 0 EXTERIOR OF THE CLUBHOUSE, RESTROOM BUILDINGS, STRUCTURES
AND GROUNDS
The City will be responsible for the repairs and maintenance of the buildingexteriors. The Tenant shall be responsible for the maintenance and repair of theMaintenance facility interior.
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Exhibit E
Golf Course Fees and Prices
Foxtail Golf Club
Curent Green Fees
As of August 27, 2012
South Course
Period & Type Peak Off Peak
WeekdayNon - Resident 30.00 22. 00
Resident 19.00
19. 00
15.00
15. 00Senior Resident
Weekend
Non - Resident 38.00 22. 00
Resident 27. 00 15. 00
Senior Resident 27. 00 15. 00
North Course
Weekday35. 00 27. 00
19. 00
Non- Resident
Resident 25. 00
Senior Resident 25. 00 19. 00
Weekend
Non Resident 49. 00 27. 00
Resident 34. 00 19. 00
19. 00Senior Resident 34. 00
Notes:
1. Off -Peak - Generally mid to late afternoon
2. Resident Seniors are defined as age 62 or older. Discounts: Residents 20 %, Senior Residents 30% off non resident
posted peak and off peak rates. Specials are not subject to discount. Discount rates are rounded up to the nearestdollar.
3. The golf courses and related facilities located on the Premises shall be open to the public at a Cost of Golf (definedbelow) which is not in excess of the Maximum Cost of Golf charged by comparable public courses ( "Maximum Costof Golf) in the San Francisco Bay Area, as determined below ( "Comparable Courses"). The Cost of Golf shall besubject to the initial approval of City. Thereafter, Tenant may, without consent of City, increase the Cost of Golf inaccordance with the procedure described below if, in its reasonable business judgment, such increase is in line withthe Maximum Cost of Golf charged for comparable services by comparable public courses in the San Francisco BayArea. For purposes of this section, " Comparable Courses" shall initially be: South Course - Blue Rock East, BlueRock West, Rancho Solano, Paradise Valley, Bennet Valley, Napa. North Course - Windsor, Rooster Run, IndianValley, San Geronimo, Peacock Gap and shall thereafter be revised from time to time upon the request of Tenantand approval of City. Tenant may propose an increase in the Maximum Cost of Golf no more than once in anycalendar year during the period from July 1 through September 30. Such increase shall be based on a survey, conducted by Tenant, of the fees charged by Comparable Courses. The survey and proposed fees shall besubmitted to the City Manager at least thirty (30) days prior to any proposed increase. " Cost of Golf shall mean thetotal cost to reserve a tee time and play one round of golf for one individual at the posted non - resident daily fee ratesfor morning tee times on weekdays and weekends. Where such posted fees include carts ( i. e. carts are required), the "Cost of Golf shall be the posted fee with no credit or adjustment for the required cart.
4. Current private cart owners retain the privilege until such time as the licensee cannot, or does not, use it
further. A licensee may elect to go inactive by paying a fee of $ 100 per year for up to a two year period. At anytime during this period an inactive licensee may elect to activate his /her license by paying the currentapplicable trail fee. Other: a) licensees including existing and new will be limited to 50. b) family membersmay ride in the private cart without charge c)non- family members will pay 50% of the current daily cart rentalrate d) The annual trail fee for existing licensee holders as of August 29, 2012 will be $ 750 for non - seniorresidents and $ 550 for senior residents. The fees will be increased by CPI annually. e) Insurance, safety, appearance, lights, horns and electronic devices may be addressed and policies established at the discretionof the Tenant.
5. Annual Cards- a) existing Annual Cards will be honored. b) the Tenant will utilize an Annual Card Program withprice and restrictions, if any, to be established by the Tenant.
6. Junior Golf - Members of the Rohnert Park organization " Junior Linksters" may play for $ 5. 00. Price may bechanged by CPI; and restrictions ( e. g. course, time, etc.) may be established by the Tenant.